Friday, October 16, 2015

Lonnie Franklin, Jr., Pretrial 11: Prosecution Attempts to Interview Defense DNA Experts Stymied by Defense Lawyer

Lonnie Franklin, Jr., in court, 2/6/15
Pool Photo: AP/Nick Ut

The previous post on this case can be found HERE.

October 13, 2015
I arrive on the 9th floor after 8:30 am, which is a bit late for me.  I see one of the members of the defense team in the hallway. It's a tall, slender older gentleman who might be one of the private investigators.

Inside Dept. 109
DDA Marguerite Rizzo is already in the well. With her is one of the wonderful ladies from the DA's victim impact team. I know her. She attended quite a bit of the Cameron Brown trial. A few minutes after I arrive, People Magazine reporter Christine Pelisek arrives. There are no family members in the gallery today.

There are other attorneys in the well so it's a good bet there will be another cases on calendar today. Christine and I chat for a few minutes. The court reporter is at her desk. Judge Kennedy's clerk is also here. More attorneys arrive for maybe another case. DDA Beth Silverman arrives and says hello to myself and Christine.

9:22 AM
The Franklin defense team arrives. Well, Louisa Pensanti was here a bit earlier, but Seymour Amster, Kristin Gozawa and the PI looking man arrive. Amster starts to sit at the defense table and the bailiff tells him, "We have something before you." So, there will be another case ahead of Franklin.


Silverman and Rizzo are deep in conversation. 

A female defendant in an orange jumpsuit is brought out. I see the court reporter hand DDA Silverman transcripts from September 18 and 24. The female defendant has mid arm length dark hair. She appears to be quite young.

9:24 AM
Judge Kennedy takes bench, and the case is called. This is a quick appearance. The matter is being put over to December 7. The defendant waives time and counsel join. That's it. The defendant is put back into custody. I overhear the bailiff's talk about "taking her up," most likely to a higher jail floor.

If you are ever in the downtown criminal court building, you will notice that the public elevators do not have buttons for certain floors. That's because those floors are holding cell floors.

Interesting. There is another female defendant brought out, also in an orange jumpsuit. The court goes on the record. The case is on calendar for probation and sentencing.  Judge Kennedy states she has read and considered the probation officer's report. The defense waive [arraignment] for judgement. The court states that in light of the plea agreement, there is no probation.

The defendant is sentenced to 2 years on the 422 charge and 4 years on the 186.22 charge for a total of six years.  The defendant has 1,014 days credit. [ In LA County, defendants get one day credit for each day served.].  This translates to 2,028 days. The defendant is ordered to pay some court costs and restitution costs. There's something about parole revocation. She is ordered to register as a gang offender; she's ordered to submit DNA samples as required by law. The court asks if this is going to end up being a "time served" sentence. I miss the defense attorney's answer. The court tells the defendant she could be returned to prison up to one year if she violates parole.

Every time I sit in court and listen in on the proceedings, I read the penal code for the specific charges and learn something new.

The defense attorney tells the court that the defendant has a federal case pending, so it looks like she will eventually be "transferred to another penal institution." And that's if for this defendant. She's taken back into custody.

Lonnie Franklin, Jr.
Judge Kennedy asks if the parties are ready on Franklin. Mr. Amster asks the court if they were waiting on him. Judge Kennedy answers that they were.  The court reporter passes out copies of the prior hearings transcripts to the defense.

The court goes on the record with People v. Franklin. Each defense counsel states their appearance. Louisa Pensati, Kristen Gozawa, Seymour Amster. DDA Marguerite Rizzo states her appearance and also mentions DDA Beth Silverman.

The court asks, "Where do we stand in terms of anything."  Mr. Amster addresses the court first. "I have two motions I would like to litigate and file today."

Amster mentions a notice of supplemental aggravation and a motion for discovery as requested by the DA. I believe it's Amster who states he would like to do those motions sooner rather than later. Then DDA Sliverman speaks. "In order to litigate the [third party culpability motion] on November 2, we've come up against a road block. ...defense has ordered his witnesses not to speak to [us]. ... That would be like [the people] telling the LAPD or me not to cooperate. ...that you're not to speak to the defense counsel. ... not to [cooperate]."

Amster flatly denies the accusation. "That's not what I instructed Sorenson." Amster goes on to say that he told the DNA testing lab that he would appreciate if they receive any request from the prosecution, that it goes through defense counsel. I believe the defense adds that it would mean the prosecution would have to speak to the defense if they want to speak to one of the defense witnesses.

DDA Silverman tells the court, "They are independent witnesses, that belong to the court system. ... So it doesn’t look like we may be ready on that."

Amster counters, "We are asking Sorenson ... they are an independent agents. ... Our preferred method is, if they [prosecution] want communication with them [Sorenson] we would like to be present and have it tape recorded."  DDA Silverman tells the court, "That's now what the email states."

DDA Silverman goes onto explain that she has a copy of the email that was sent to her from Sorenson. She reads the email quickly. I can't capture everything it states. DDA Silverman states she will file the email with the court.

DDA Rizzo tells the court, "There is nothing in case law... Mr. Amster doesn't have the right to direct Sorenson if [the prosecution] wants to speak to them... that the defense has to be present and the interview tape recorded."

Judge Kennedy confirms there is nothing in case law to support Mr. Amster's "request" to Sorenson.

Amster argues with the court as to the law and requests the DDA file a motion and the court will rule on it. DDA Silverman argues that they are not required to file requests just to speak to a witness. DDA Rizzo tells the court that there were no motions filed when the defense investigators went to speak to the prosecution's witnesses. DDA Rizzo continues arguing the specific points of law.

Amster insists, "All we have done is advise Sorenson of our position." DDA Silverman states, "They [Sorenson] are not lawyers and they have decided they will comply [with the defense request]." Judge Kennedy says, "Mr. Amster you are way out of bounds here."

Amster insists they are firm in their position. Amster feels that this is not part of what case law is and that the court needs to make a ruling.  Amster adds, "There are many reasons why we should do that. ... I think we should be able to know what our witnesses say."

The court responds, "You would be entitled to have those statements. You are not precluded to set the contact or preclude contact. ... Any witness of their own volition ... any witness can elect not to talk."

Amster restates what he believes is his position and what happened. "So the court is clear ... I never gave Sorenson an order, nor did I direct them. .. [I just said] ... this is what we request that they consider doing."

As Amster addresses the court, his voice gets louder and the tone is firm. DDA Silverman gets up from her seat and takes a paper [I believe a copy of the email] over to the court clerk to hand to Judge Kennedy.

Judge Kennedy orders, "Turn down your volume Mr. Amster."

Amster continues to demand that the issue be briefed, in formal court papers. I believe Amster goes on to state that the court is "outside of it's authority" to make such an order, but I'm not sure if this is a new point he is referring to. Amster then makes an accusation. "...that this court has chosen, ... has given the prosecution wide latitude to not do written motions."

Now everyone is yelling at once, denying Amster's accusations. Judge Kennedy tries to rein in the room. "Mr. Amster, I'm tired of you yelling at me. ... I don't need that type of decorum." Amster counters that he's repeatedly requested things be put on the record. Judge Kennedy answers back, "There is everything on the record."

Amster continues with his request of the court, to follow procedures and make the prosecution file a motion about the Sorenson issue, so that the court "has the ability to look at all the full facts."

DDA Silverman interjects. "I need to put something on the record for appellate purposes. Counsel has accused [the prosecution] of things." 

DDA Silverman continues with her record of the defense accusing parties of not putting everything on the record. I can't type fast enough to keep up with Beth.
Beth continues, "The people have filed all the necessary motions that were appropriate. We don't need to file a motion for every single thing to prepare on our case." DDA Silverman then cites case law.

Amster then clarifies his point. "I am not saying that anything has happened off the record. ... I'm saying it's the prosecution tactic to keep things off the record. ... I did not initiate the contact with Sorenson. ... Sorenson called me and asked what our position was. ... We believe everything should be recorded and there should be a record on everything. ... If there is a contact with the prosecution with Sorenson, I believe we should be there and it should be recorded."

Amster goes on with his argument. I can't keep up.

Amster finishes by saying, "I'm asking the court to have them to file a motion."

Judge Kennedy replies, "Mr. Amster, I've not so much as sneezed off the record with this case. ... Every single [working?] motion, contact, has been on the [record]. ... I'd never do anything off the record on this case or any death penalty... in this case. ... The fact that you would intimidate that I'd do anything off the record is ..."[I miss the court's closing words].

Amster backtracks and tells the court, "It's not the court. It is the style of the prosecution ... [that] chooses to litigate off the record."

[In essence, maybe without realizing it, Amster is accusing the court of letting the prosecution do what he is accusing the prosecution of doing.]

Judge Kennedy stands firm. "Enough. I don't want to hear any [more?]. ... They [prosecution] don't have to file a motion to get a witness to talk to them. ... When you send this type of email ... and you call it a request ... If the Sorenson [staff?] don't want to talk to the people [that's a different issue?]... You don't have the right to set the terms of the contact. ... You don't have the right to set the terms of that and I'm not going to have a motion about that."

Judge Kennedy then addresses the prosecution. "If the people [at Sorenson?], if they decided that they are not going to talk to you, I don't have the authority to [order them] to talk to you."

DDA Silverman responds, "We're going to have to bring them into court, and it's going to be at the defense expense." Judge Kennedy replies, "It's not at his [defense] expense. It's at the county."

Now it's a back and forth battle for which day next week, to litigate the motions that Amster is going to file today. Understand, Amster hasn't even taken the motions over to the court clerk yet.

Amster then mentions something to the effect that he's concerned about starting a trial. I wonder, if Mr. Amster is talking about this trial or starting another trial. I thought his calendar was cleared for this case.

Judge Kennedy asks her clerk what day is good for the court. Amster asks the court about a date from the prosecution. DDA Silverman responds, "Assuming that he's going to file his motion." The court replies that the people get 10 days to respond.

Amster appears upset about the court's response that the prosecution gets 10 days. He wants to put something on the record. He brings up a past instance where he was only given three days to respond to a prosecution motion.

The court tells Mr. Amster, "If they were able to read those motions, they might be able to do it earlier. But how can they know if they haven't even read the motions?"

After a bit of back and forth as to who was available when, October 29th is finally agreed upon by all parties. The court orders the defendant remanded, but they don't appear to be finished yet. Amster states he is going to file the motions right now.

DDA Silverman tells the court she believes there were records subpoenaed to the court. She asks that they be released. Amster addresses the court about his position on records, and that in the future, when records come in, he requests that the people sign a stipulation. I don't think there's any argument about that. The defendant is finally taken back into custody.

Basically, it was a whole lot of arguing from everyone [court, prosecution, defense] about who said what, what they actually meant and what one side is allegedly trying to do to the other.

After Judge Kennedy left the bench, the prosecution stays to go over subpoenaed documents to ensure they've copied everything that has come in. As he leaves, Mr. Amster has an unusual conversation with Judge Kennedy's bailiff, but it appears the bailiff is just listening and not engaging him.

The next post on this case can be found HERE.


David In TN said...

This trial was supposed to begin in June. Do they still have a December date?

Sprocket said...

The trial start date is still set, but it's not realistic, imho. Very difficult to get a death qualified jury during December. A lot will also depend on what happens at the next hearing.

The prosecution has not been able to interview the Sorenson Labs personnel, who are defense expert witnesses.

That means, they may have to be called into court and testify under a 402 hearing. There will be many 402 hearings before some defense witnesses can testify before the jury. However, some of those hearings may not happen until right before the defense calls the witness, in trial.

David In TN said...

Thanks. It looks like a trial is many months away.

ritanita said...

"Mr. Amster, I'm tired of you yelling at me. ... I don't need that type of decorum." Amster counters that he's repeatedly requested things be put on the record. Judge Kennedy answers back, "There is everything on the record."

Amster is not the judge or prosecutors favorite person, for sure. He's trying hard to squeeze the prosecution into a tight trial schedule while trying to keep his witnesses from speaking to the prosecution.

That annoys me terribly, especially when it comes to fuzzy DNA results. A 15+ person mixture is very unusual and when there are such mixtures, the ability of the expert to find a good "match" is almost impossible. I forget the number of alleles needed to be significant. A brief survey of articles finds that deciphering a mixture is probably more art than science.