Sunday, October 18, 2015
Kelly Soo Park Fraud Case, Pretrial 4; Judge Admits to Releasing Grand Jury Transcripts to Two LA Times Journalists
The previous post on this case can be found HERE.
UPDATE 7/13/16: Corrected DDA Ma's first name to Keenes
UPDATE 10/18: edited for spelling, clarity, accuracy
October 15, 2015
I'm on the 9th floor of the downtown Criminal Justice Center. There are not as many people here like there were on September 25.
Kelly Soo Park's husband and sister Kim are here, along with friend Deborah van Cleeve.
Defendant Paul Turley's attorney Benjamin Gluck is here along with Reuven Cohen, one of the attorneys representing Marisa Schermbeck-Nelson.
I also see journalist Pat LaLama's husband, attorney Tony Brooklier has arrived. He's representing defendant Leticia Lemus, who is #7 on the larger indictment. I've always liked Tony. He's tall and distinguished looking and has always been kind to me.
At this end of the hallway, there are a few people with juror badges sitting on benches.
The attorneys are congregating in several groups. Like I've noticed before, Mr. Gluck appears to be the attorney that other counsel are conferring with the most. It makes sense, once you understand that Mr. Gluck has represented Dr. Uwaydah for many years. Benjamin Gluck is no stranger to representing medical professionals charged with insurance billing fraud. He has two criminal cases in Orange County that are still pending.
While currently representing Paul Turley in this case, back in 2011, Gluck was representing Dr. Uwaydah/Frontline Medical. Frontline had made a $100,000 deposit towards Park's defense on first degree murder charges. Alerted by the prosecution to a potential conflict of interest because of the source of these funds, Park's attorneys withdrew their representation of Park. The question then became, who had authority over the funds that were sitting in Park's former counsel's trust account. I missed that hearing, but Lonce LaMon from adjuster.com reported on what she called the "tug of war" over the $100,000.00.
Not much earlier in time, Mr. Gluck represented Dr. Uwaydah/ Frontline in suing two of his current co-defendants, Peter Nelson and Marisa Schermbeck [later Schermbeck-Nelson]. It was in November 2010, almost three weeks after Park bonded out of jail, and five months after Uwaydah fled the country. Dr. Uwaydah had Gluck file a lawsuit charging the pair with breach of fiduciary duty, constructive fraud, conversion, civil theft, unjust enrichment and unfair business act or practice. You can read the initial filing HERE. The lawsuit was eventually dismissed because Dr. Uwaydah claimed he could not return to the United States to be deposed.
More people arrive on the 9th floor. I thought the LA Times might show up but they haven't arrived yet. There are a couple of ladies walking the hallway back and forth.
The 9th floor is very busy with trials today. Ka Pasasouk, charged with the December 2012, quadruple murder in a Northridge illegal boarding house, his trial recently started jury selection in Dept. 106, Judge Fidler's court. Judge Fidler presided over both Phil Spector trials. In Dept. 107 Judge Lomeli's court, a jury is hearing closing arguments in the trial of Dr. Lisa Tseng, on trial for murder in the deaths of three of her patients. The prosecution alleges Dr. Tseng was a "pill doctor" and her over-prescribing of pain killers caused her patients deaths. Over in Dept. 104 (Judge Perry's court, who presided over the Stephanie Lazarus trial) opening statements are starting in the trial of Scott Kratlian, who is charged with murdering a pen pal.
The introductions and hand shaking continues between various defense counsel.
DDA Dayan Mathai arrives. He heads over to a group of defense attorneys that includes Mr. Gluck. There are introductions and smiles exchanged. Right behind DDA Mathai, journalist Lonce LaMon clears the security station.
Inside Dept. 109
A deputy orders all attorneys to sit in the jury box. He then orders all defendants out of custody to sit in the front row, left side, right next to the bailiff's box. Two very pretty female defendants are there. The much younger woman on the right is Yolanda Groscost. Her hair, makeup and outfit are perfect. Groscost could have just walked off a modeling shoot. The older, professionally polished woman on the left is attorney Tatiana Arnold. The male defendant out on bond, Terry Luke, is not here yet.
A very casually dressed man sitting to my right, leans in to tell me he thinks the two women in the front row have had plastic surgery.
The courtroom is a little over half full. There are five deputies in the room to keep order. Again, the one deputy orders all defense attorneys in the jury box. A few attorneys stop by the regular bailiff's desk. They are trying to see their clients. Judge Kennedy comes out and speaks to her bailiff. She is not in her robe yet. DDA Mathai exits the courtroom to have a conversation with several people in the ante chamber.
The regular bailiff goes out to speak to DDA Mathai in the ante chamber.
Terry Luke arrives and he's ordered to sit in the first row with the other defendants out on bond. A blond female attorney comes over to the bonded defendants and introduces herself as "Nina." I miss her last name. I hear in the well that another attorney will be standing in for Louis Shapiro, Peter Nelson's counsel.
Jane Robison from the DA's office is here.
Benjamin Gluck takes the lead to communicate for the group to the court. Judge Kennedy's clerk tells the parties that the judge is coming out. He adds, "She is going to check in with everyone."
Judge Kennedy takes the bench and goes on the record. "This is the people against [she pauses], everybody." There's a bit of laughter in the courtroom with her description. "We are on calendar for a sort of pretrial today, and I know that um, the defendant from yesterday we do not have."
Ms. Touchhan, who represents David Johnson, tells the court her client is still out on a medical problem.
The court asks the bailiff, "Is everyone else here now?" Her bailiff responds, "We’re still missing Paul Turley." Turley is still in transit from the jail to the court. The court continues, "There are a couple of defendants that have two attorneys. ...it makes things confusing for the court. ..and Amy Jacks, where are you? ... What is your status?" Ms. Jacks, one of the counsel representing Marisa Schermbeck-Nelson, responds. "Our status is that we have not been properly [paid?]."
I believe there is also some discussion involving Mr. Flemming, [co-counsel for Jeff Stevens] and that he has not been retained. Judge Kennedy's clerk reads something to her, then she addresses the group. "I'm not sure what everyone wants to do today. ... Ms. Jacks, you have a motion, a bail motion, and we'll get to that I guess. ... What does everyone else want to do?"
DDA Mathai addresses the court. He states that there is Ms. Jacks bail motion and there are some issues regarding the protective order that will be quick that we can resolve. There are some issues regarding discovery and the matter of picking a new date. The court mentions that there is something that the people filed yesterday, but the court is not aware if the defense attorneys have received it yet. I believe DDA Mathai states they emailed the defense attorneys the motion they filed. The parties are trying to pick dates. The defense needs to tell the court about their readiness.
Benjamin Gluck for defendant Turley addresses the court regarding the readiness. "On that point we have a few housekeeping items to solve. Unfortunately, our best laid plans from last time did not come to fruition. ... We did not get the grand jury instructions or exhibits until last night. ... the point is we set that date [under the belief?] we would have that and [more discovery?]. ... At the same time we've been trying to get some [list of?] items of what discovery is going to look like. ... We've been unable to get some predictions on that from from the DA's office. ... We've gotten some discovery. It appears to be a very narrow slice of the issues. ... We would be happy with an index of what we might.... even a non binding index, so we can sit down with our clients and say what we have to work with, and not come in every week. ... We don't have anything really to set yet. I would propose we could set a date, even without defendant's here."
Judge Kennedy tells the parties, "What I understand, the defendants are 30 of zero today. As long as we don't go beyond the 60, we don't need defendants here to waive time.
Mr. Gluck states, "We could set a date in the near future." The defense requests the court requests the people give some indication of what and when [the next set of discovery] is going to come in and then they could pick a realistic schedule to handle the case. "We just don't have enough information to even guess at it. ... Then we set a date in the near future ... and then tell the court what type of motion we expect to be bringing."
DDA Mathai responds. "I think in the issue of discovery ... I can appreciate the reason that counsel wants some clarity on it. The problem is we've ... It's hard to give that clarity. ... I sent an email last night ... what we've turned over and tried to be as specific as we can without locking ourselves into [anything]. ... We have given counsel, plus grand jury, 15,000 pages. ... We've outlined it for defense counsel. ... I don't know what other type of index [they] want but the categories are ..."
Judge Kennedy clarifies, "You've summarized what's been given ... but I guess what [they] want is an index of what you will give."
DDA Mathai continues. "What we turned over, ... we've turned over on hard drive. Phase two includes audio and video recordings, 188 of them."
DDA Mathai adds that there are specific instructions on getting these all at once to all the defense counsel. Defense counsel has to go all together and make a payment for copies of all those recordings.
"We have outlined that ... in two weeks they will have a majority of the case. ... We've tried to prioritize, and it's so tedious to copy all of it and scan and date stamp it. ... That process is going on behind the scenes every day. ... And as we get it, we've tried to forecast it for the defense. ... We're a month into the arraignment. ... Within six weeks [they] will have a bulk of the discovery. ... All the recordings and DA investigation reports, the California Medical Board reports. ... So I've outlined all that for counsel. ... After phase two there will be additional discovery and we won't know [the exact?] time frame on that. ... [it's] stuff that's been recovered on search warrants that needs to go through discovery."
DDA Mathai tells the court they've tried their best and that they've tried to have some clarity on that [roll out of what's coming] themselves, but that's why they don't have certainty on some of the items. The majority of the discovery, the defense will have within six weeks of arraignment.
Mr. Gluck replies, "That's incredibly helpful information, and that was what Ms. Chon refused to give us and if she would only ... I have to point out that the indictment was filed in February. ... It was filed and on the bail amount that ... so that it is not a surprise that people are in custody. ... So why would it take six months to get discovery to us? The things that Mr. Mathai is saying are very helpful. ... If we can keep them to that it will solve many of the things we are demanding."
Mr. Gluck then addresses the issue with the recordings. "They are demanding $60,000, or $5,000 per defendant in order to make available to us that we are entitled to have under the constitution. ... We think that's excessive and unnecessary. ... We think a copy service to copy transcripts under the law ... that we should have to give $60,000 to the audio lab ... there [must be] a faster and cheaper way to do that."
DDA Mathai responds, "Everything that I have said, is reflected in the email, their cost associated with that is what we've been informed of. ... The sound lab gave us this amount."
This is not something that is arbitrary. This is what the DA's have been told from the sound lab.
Judge Kennedy replies, There may have to be some kind of motion in regard to that. ... It seem unfair, that you have to pay to get discovery on your own case."
There is more discussion about the sound lab's costs. Judge Kennedy adds, "It doesn't seem right. With out looking into it, it doesn't sound right to me."
DDA Chon adds something to the effect of, when counsel is appointed, these are [court?] rules and are discoverable. When they don't have funds, all that is free. DDA Chon explains more to the court but it is totally incomprehensible to me.
Judge Kennedy adds, "You'd want to look into that. It may be a litigation issue at this point, I don't know."
Mr. Gluck adds, "To save time, if we could have a stipulation that they make a collection ... I will copy it. Even I can copy those files on my computer and I can share with them [the rest of defense counsel]." Mr. Gluck adds something about a process from the sound lab might take months. Judge Kennedy states Gluck's suggestion seems reasonable.
The proposition is, the prosecution makes one copy. The defense takes up a collection collectively. As a group, they pay for one copy and all the defendants sign that they are not going to demand a separate copy [from the prosecution], the defense gets some kind of [receipt?]. That seems like a much more expeditious process.
DDA Chon states, they can do that, and that she sent in the email what they have to do.
Mr. Gluck makes it official. They are now agreeing that Mr. Gluck's office will copy one hard drive and one payment and will share with the other defendants that participate. DDA Chon adds, the defendants, they all must agree in open court and it must be on the record.
Judge Kennedy adds, "If any of the individual attorneys wish to pay their own $5,000 and get their own copy, and are free to do so, but they can opt out on the record as the ones remaining can do." DDA Chon replies, "It must be on the record." DDA Mathai tells the court [about the costs], "This is not our idea. This is from the professionals that do that."
Mr. Gluck insists this is not because of the defense. There is more discussion about making this clear as to who is opting into Mr. Gluck's proposal and who would be opting out and who would be chipping into the fund. There is discussion about getting the waivers now instead of coming back. They will have to work fast, because the looming item is the scheduled evacuation drill of the building. Judge Kennedy, on the record calls it, "Because of the shake out. We have a shake down and shake out."
Judge Kennedy tells the group, "We have certain defendants that are here. ... There was something about a protective order?"
DDA Mathai responds to the court's inquiry. Mr. Gluck sent a proposed amendment to the protective order. The only change we are recommending to Mr. Gluck's proposal is that it reflects that all parties are bound by it. The DDA is asking for the protective order. The defense parties are not.
Judge Kennedy Admits to Releasing Grand Jury Transcripts
Mr. Gluck states that he is agreeable to that. He wants to point out that there's been material that's been released publicly. And this is when Judge Kennedy makes an announcement.
Judge Kennedy replies, "I'm going to fess up to an error that I made. I allowed [two] reporters to read some of the grand jury transcripts, not realizing, that ... [not] all of the defense attorneys got their transcripts. ... I assumed that everyone had them until all these issues came up. ... [There is] supposed to be a ten day grace period when defense counsel gets transcripts ... then open to the public. So that's my fault. I own that. I won't make that mistake again. .... That's my error. It's not on the defense."
Mr. Gluck replies, "That was one of the things that I would say. That information did not come from us [defense counsel]. ... [There was] medical information with names redacted on the net and that didn't come from us."
DDA Mathai states they can write up the amendment and submit it to the court. So, the parties are going to amend the protective order. Judge Kennedy replies, "If you can interlineate it in a way that is agreeable to both sides, that's fine with me."
Counsel are trying to figure out how they can do this quickly without having to go back to office to have something typed officially. A suggestion is made to just hand-write it in. I'm not sure who, but someone says, "I have bad handwriting."
DDA Kennes Ma addresses the court. It has something to do with the temporary restraining order. He also brings up the issue that there are people that have claims against [the seized funds?]. Judge Kennedy states there are claims that have been filed already. There are others that are considered verified claimants. Mr. Gluck tells the court that he spoke to Mr. Ma. "The statutes are unclear if the defendants need to put in claims." Judge Kennedy clarifies, "So in the interest, the defendants are going to file claims." DDA Ma asks that the TRO [temporary restraining order] be in effect.
Gluck has one more issue to bring up and that's regarding the grand jury procedure whether the exhibits are maintained and when instructions are shredded, and what policy governs that. Judge Kennedy states she doesn't know if that's a court policy or a DA policy. DDA Mathai adds that there are some things that the DA's don't control in the grand jury. Defense counsel will have to find out from the grand jury from their procedures. Judge Kennedy states that Dept. 100 is the one that would know these things. [Department 100 is the court's master calendar court.] Judge Kennedy tells counsel, "I will ask Judge Brandlin. He would know these things."
Mr. Gluck is asking about the grand jury adviser. The grand jury adviser is a deputy district attorney. Judge Kennedy responds, "Mr. Mathai, you can look into that." The court continues, "Now we need to pick dates. And if we’re going to take waivers we need to rotate attorneys and have five male defendants and the three out of custody. ... Have you all discussed dates?"
Mr. Moss [representing defendant Jeff Stevens] stands. He speaks so softly the court tells him she can't hear him. Mr. Moss asks for next Tuesday for his client. Mathai agrees to next Tuesday.
DDA Mathati wants to add "one small thing." On October 9, people filed an updated temporary restraining order against the bank accounts. They only involve 9 mentioned names. "I have those to be picked up. This order has been published in the Daily Journal and sent out to last known addresses."
Mr. Gluck brings up another issue that I miss. A female attorney, I believe it's the Deputy AG Elyse Davidson, is asking for a notice if bail status changes for this defendant [Paul Turley]. Judge Kennedy states, "Assuming the attorney general is on the mailing list or notice list." Mr. Gluck tells the court, "We can certainly add the attorney general for any mailings." Ms. Davidson tells the court, "Our main concern is the public protection."
Five male defendants are brought out. They are all chained together, in a row. The defendants are sitting at the defense table. Their counsel are standing behind them.
Judge Kennedy tells counsel, "There has to be an explanation to them about this waiver on the discovery or whatever. On the far left is Paul Turley. I recognize Ron Case on the far right.
Mr. Turley is called first. Mr. Gluck for Mr. Turley. Judge Kennedy addresses the parties. "Just so that all defendants understand. We had an informal discussion. The discovery is voluminous. The DA's office states they want $5,000 from each privately represented defendant in order to receive the next state of discovery. ... What has been proposed ... rather than each private represented defendant, paying for their own discovery with the DA's, ... that Mr. Gluck, on behalf of all the defendants is going to pay and hopefully get contribution from co-counsel for one copy of the discovery, and he is there after going to duplicate the discovery at [a cost of] something less than $5,000 per defendant."
I believe it's DDA Chon who speaks next. For the record, what we want to do is to have the individual defendant agree and their attorney agree, one, Mr. Gluck received his copy directly [from the DA's office]. ... That discovery is your discovery as well and you're going to accept that copy that he provided and not come back that you need your own, individual copy from the prosecutor.
I'm not sure if it's the court who continues or if DDA Chon adds the next piece.
Anybody can if they want to, pay the $4,716.04 to get their own copy. But if you go this way, and agree to go through this procedure, then you cannot claim later that somehow, the discovery has been denied to you.
Mr. Turley has no objection. Next is Peter Nelson. Amy Jacks, special appearance for Peter Nelson. Nelson agrees. Jeff Stevens is next. Mr. Richard Moss for Stevens. They are agreeable.
Ron case is next. I miss the name of the female attorney who speaks up. In addition, there is also a public defender who is representing Mr. Case. The public defender will get their own copy of discovery. [That's because, defendants who cannot afford an attorney, and one is provided by the state/county, they do not have to pay the DA's office for the audio/video files.] Judge Kennedy adds, "In the case that there is a private counsel that represents you, that attorney will be responsible for getting a copy of the discovery." Counsel join on Ron Case.
Judge Kennedy asks for the attorney for Mr. Folgar. Mr. Werksman, who supposedly is representing him, is not here. Ms. Jacks speaks up and asks about Mr. Shapiro's client, Peter Nelson. Apparently, Nelson had a bail hearing scheduled of October 23. That's a bad date for the court so it needs to be changed. Ms. Jacks states she will have Mr. Shapiro contact the court.
I'm not sure who it is who steps up for Mr. Werksman and defendant Folgar. They tell the court that there were some issues with the retainer. Judge Kennedy states she was not under that impression. The counsel who is there for Werksman states there is a problem with the representation fee.
The next issue, is to set a date for about a week and a half, so counsel can tell the court the defense plan regarding the 995 filing.
DDA Chon addresses the court about some of the problems with the case.
The next defendants that are addressed are those out on bond. First is Terry Luke. A new defense attorney is here for Luke. It is not Jeff Kent. All I have is "Marina" or Ms. Marina. Luke's new counsel has not received any discovery. She may have received the TRO's and something about the "claims." Judge Kennedy asks the defendant if he's heard about obtaining the discovery. Luke agrees to the suggested method of obtaining the additional discovery.
Mr. Gluck suggest splitting the two indictments onto two different calendar tracks. Judge Kennedy responds, "At this point, I want to keep everyone on this one calendar."
Joel Levy for Ms. Groscost. They will participate in the discovery in the manner discussed today. Ms. Groscost agrees from the gallery. Mr. Levy tells the court his client would like to waive time to a status of November 19. The other people on the smaller indictment, BA435339, were hoping to split out [onto a different calendar track]. Mr. Levy believes that the discovery issues will not be resolved by the Nov. 19 date, so his client would like to waive time.
Next is Tatiana Arnold. Her attorney has an issue. Her attorney is not available, and ask that every hearing be set collectively. Now the calendar date they are looking at is November 2. The court states a better date would be November 3. "Does that work for everyone?," the court asks. Mr. Gluck responds, "Yes, your honor."
Mr. Levy for Ms. Groscost again. "My client is out of custody. She had a long planned trip, was going to take a trip to North Carolina." DDA Mathai speaks to Mr. Levy privately, off the record.
The court asks, "Have we finished with these five in custody defendants?" The court then adds, "Now set for October 20 for opposition on the [186?] for defendant Stevens, and November 3 for everyone else."
Mr. Gluck asks, "Would it be permissible for the people to give us their index, not binding, but in advance of that?" Judge Kennedy states, "If you need my permission for that you have it. ... In the extent you need to work these [things] out among yourself, it's always better."
DDA Chon speaks next, but since she's seated, I can't see her and have difficulty hearing her.
I believe the court states that David Johnson, at this point would be November 3.
DDA Chon adds that regarding [the first set of discovery?] for all defendants, they could submit their hard drives. Judge Kennedy adds, the charges are only for audio and video. [Not the rest of discovery.] DDA Chon states she still needs hard drives from defense attorneys to turn over the rest of discovery. Judge Kennedy asks if everyone understands that. She then asks for the next group of defendants.
Ms. Arnold's attorney tells the court they have another issue in regard with respect to Ms. Arnold. [They] have not been provided the search warrant and the special master and numerous files related to this matter were apparently seized during the search warrants. The matter issued via the indictment.
DDA Mathai states this is the first time Arnold's attorney has brought this matter up to him. He also states that he's informed [counsel as a group, or Ms. Arnold counsel?] that they are hoping that the search warrants that were from the arrest date of Ms. Arnold's arrest will be included in this case in the next two weeks. There is a question about why there is no special master for Ms. Arnold's files. DDA Mathai states he will discuss that with [counsel?] later.
I believe it's Mr. Gluck who tells the court that Ms. Arnold also represented completely unrelated clients to this case, so that is an issue that has been flagged for the DDA. Ms. Arnold had an independent law practice, but what Mr. Gluck can't confirm is there were reams of files of clients in her practice, completely unrelated to this matter. Mr. Gluck is asking that those files be returned as quickly as possible. DDA Mathai will take this matter up with Ms. Garafalo after court today.
Judge Kennedy asks, "You all are going to talk after court, I'm assuming. On November 3, if you haven't resolved [this] you can take it up then."
DDA Kennes Ma has housekeeping issues. People filed a temporary restraining order 186, under seal. It was under [the] indictment. At this time, the people no longer need that seal."
A female defendant in custody is brought out. Maria Turley. Vicki Podberesky for Maria Turley. Maria's waiver for Gulck to get the discovery is obtained. Next hearing date for her is November 3. DDA Chon clarifies for the record, that is for turning over the audio and everything. That's right. The defendant is remanded.
Judge Kennedy asks, "Who is left?" More female defendants. An attorney for Terry Luke raises an issue. Mr. Luke needs to attend a conference. DDA Chon asks that all out of custody defendants not travel out of the jurisdiction of the court without prior approval of the court. Judge Kennedy responds, "Usually, that's a condition of bail. ... I don't know what your [defense] bond company ... may have conditions of bond." DDA Mathai tells the court that this was brought up about leaving the jurisdiction.
Back to Ms. Groscost. Mr. Levy states she is going to North Carolina. She will be there during November 3. He's asking for a 977 waiver. Judge Kennedy states that's fine, just get the waiver prepared and have his client sign it.
Kelly Park is brought out. She quickly looks over to her family in the gallery and smiled. As Mark Kassabian leans in to speak to her, another woman is brought out. The court asks, "Did you discuss discovery with Ms. Park?" "Yes, your honor," Mr. Kassabian replies. Judge Kennedy asks Park if she waives and agrees to receive discovery from Mr. Gluck. Park agrees. Next hearing for Park is November 3.
The other woman who was brought out is Ms. Nelson. Mr. Navarro, public defender and Amy Jacks for Ms. Nelson. There's some discussion about the waiver of discovery if the other counsel comes over. The court tells counsel, "This building is going to be evacuated in [zero?] minutes. ... You can come back this afternoon or come back another day and have a bail motion." Ms. Jacks states she will come back at 1:30 pm. For all intents and purposes, the building is in evacuation mode.
Another defendant is quickly brought out. It's Leticia Lemus. She has dark hair with hints of blond throughout. Tony Brooklier is her counsel. Lemus and Brooklier agree to the new discovery release. And that's it. The bailiff's ask everyone to leave the courtroom.
I decide not to stay in downtown for the afternoon session. The next hearing is November 3.
Next post on this case can be found HERE.
Note: T&T readers should know that I am scheduled for jury duty the week of November 2 at the Van Nuys Courthouse. If I don't get called in on November 3, I'll attend the hearing.