Sunday, September 10, 2017

Michael Gargiulo Case, Pretrial Hearing 38


Michael  Thomas Gargiulo in 2008 after his arrest.

UPDATE 9/13/17: edited for spelling, minor corrections (guilt phase to penalty phase), etc.
Previous post on this case HERE.

September 8, 2017
I’m on the train to downtown Los Angeles for a pretrial hearing in the Gargiulo case. For the June hearing, I was recovering from a lung infection and did not want to risk coughing up a storm in Judge Fidler’s court. It’s also why I’ve missed several pretrial hearings in the Robert Durst case.



When I reach the front entrance to the courthouse, I immediately notice a change. One security station was moved from the back of the building lobby to right inside the front door. So the long line to get in will back up outside the building instead of inside. There is still one security station inside the lobby on the south side entrance beside the west wall, creating a wide open lobby space.



East of the new lobby space, the District Attorney’s Justice System Integrity Division (JSID) used to be located in a cubby of warren like offices. They moved out of there when the DA moved into the renovated old courthouse building across the street last year. Since then, renovations had been going on in the old JSID space for sometime. Finished, this space is the new juror waiting room. I don’t know if the new space replaces the 5th and 11th floor jury rooms or is in addition to them.



In the elevator bay, I see 48 Hours producer Greg Fisher and we catch up. Apparently, this is only going to be a short hearing to set a trial date. That’s different than the clerk minute notes from the June hearing.  I got a copy of them in early July to make sure I didn’t miss anything important.



Up on the 9th floor, we run into People Magazine's Christine Peliseck. While working for LA Weekly, Christine broke the 'Grim Sleeper' story. Christine’s book on the Grim Sleeper case has been out since June. We head inside Dept. 106, Judge Fidler’s court and take a seat in the third row. 



Sitting in the second row off to our right is defense investigator Chris Nicely. His handsome young son is with him again.

I apologize to Christine that I missed her book reading at author Carolyn Murnick’s last LA book signing (explaining the long recovery Mr. Sprocket has had after his heart surgery). Murnick’s book, The Hot One, is about her murdered friend Ashley Ellerin, one of Gargiulo’s alleged victims. I met the lovely Carolyn back in 2012, not long after I started covering Gargiulo’s pretrial hearings.

While we wait, I try not to be too nosy listening to Christine and Greg discuss DDA Beth Silverman's new case. It's the murder of a well known hairdresser Fabio Sementilli. Apparently, the grand jury testimony has been sealed. Sementill's wife Monica 45, and her alleged lover Robert Louis Baker 55, have been charged with his brutal murder.



9:48 AM
Defense attorney Dan Nardoni arrives. He greets Judge Fidler’s clerk, checking in with her.  I strain to overhear the conversation going on over at the clerk’s desk. From what snatches I can hear, the prosecution is dropping the robbery charges and the trial won’t start until January.

9:52 AM
Lead defense attorney Dale Rubin arrives. He joins Nardoni in his conversation with the clerk.

It’s All About Scheduling

We hear quite a bit of what’s going on and why the case will wait until January. Apparently, Judge Fidler is backed up solid with trials. The court has a death penalty case that is going to trial October 30 and that case will go on until the end of the year. There are no dates available during that trial for pretrial hearings in this case. If that case ends in a guilty verdict, then the penalty phase will happen, pushing the trial into January.



From the clerk’s perspective there is quite a bit more work that the court reporter is responsible for on a death penalty (DP) case. There is a lot of verification that must go into a DP court transcript. It must be certified by prosecution and defense for any errors. The clerk informs the defense that she has to give her court reporter a bit of extra time before starting another DP case back to back. 

She has to have a break.

Another issue is, the clerk is adamant that she needs 30-45 days for the court to obtain the needed number of jurors and she will NOT put in the request for them until a trial date has been set. 

She's learned that lesson the hard way.

The defense and the clerk go back and forth about setting a motions date and setting a trial date. The clerk is firm about giving her court reporter the time she needs as well as not willing to put in a request for jurors early, before a set trial date. Back and for the negotiations go.

I miss writing in my notes exactly when DDA Dan Akemon and DDA Garrett Dameron arrive. There’s also a new sheriff’s detective in the gallery. I believe I've met him before but I've forgotten his name. From my understanding Detective Mark Lillienfield has retired. He may have joined the DA’s office but it’s not clear if he’s still there. If my fading memory is right, this detective is Lillienfield’s former partner. DDA’s Dameron and Akemon join the defense at the clerks desk to try to workout the trial schedule.



After the Gargiulo case, the clerk states there are three trials stacked up after them. The defense has a “lot of motions” that need to be argued. They will need a full day(s?) for that and they still have responses and additional motions to file. The clerk asks, “Why did you wait so long to schedule motions?” I want to raise my hand and say, "I'm wondering the same thing!" From all the positive things I’ve heard about Mr. Rubin, purposefully dragging out a case is not something he does.

It's my personal bet (with no inside information) that arguing all the motions filed so far and those yet to come will take at least two days

 if not more. I just can't see how they will be done with everything in one day.

The 995 (defense motion to dismiss) has not been argued. Usually that motion is a formality motion by the defense soon after the preliminary hearing is finished. The prelim was held in 2010. Gargiulo went pro per in 2012 and before the 995 motion was filed. Over two years later, Gargiulo (who never filed a 995 motion) gave up his pro per status and former defense attorney Charles Lindner was re-appointed. I believe Lindner filed his 995 motion late in 2015. Right after that the court removed him from the case. Then it took time for the 987.95 court to appoint new counsel and approve their presented budget.

The people have filed a motion to present the events of the Perkin's Operation at the El Monte, California jail.  They still have to argue at least one 1101(b) motion -uncharged prior bad acts- to see if the prosecution can present the DNA evidence in the Illinois 1993 Tricia Pacaccio murder. Back when the case was in Dept. 108, it was speculated that it could take up to 90 days to get that evidence from Illinois, have it tested by the prosecution and defense and presented for trial.

I’m gathering from the conversation that Dale Rubin is retiring and the Gargiulo case will be his last case. He doesn’t want to be here in court over the summer.



The trial date is set at zero-of-60 on January 12, 2018. That means the trial will be held within 60 days of that date. That gives the clerk her 30-45 days she needs to get the needed jurors. Motions will be argued almost a month later on Feb 2nd.

It appears that is satisfactory to everyone so all that’s left is the formality of putting the case over on the record.



10:17 AM

The bailiff brings Gargiulo out. He is still completely balled and clean shaven, the only hair on his face are his eyebrows. He’s in an orange jumpsuit with the white long-john shirt on underneath. He’s wearing the black horn-rimmed glasses. Rubin and Nardoni lean in to speak to him.

10:20 AM
Judge Fidler takes the bench. The sheriff’s detective leaves. The case goes on the record. The court states the defendant is present. The people filed an amended complaint [dropping the burglary charges] and waive the reading. Gargiulo is still charged with two murders, one attempted murder and one attempted escape [during the Perkin’s Operation].

February 2nd is set for motions all day. All motions (and responses?) are to be filed by January 12. Trial date is set for January 12, zero-of-60. The court asks Gargiulo if he agrees and that’s it. Quick hearing.



On the elevator ride down I got a chance to catch up with DDA’s Dameron and Akemon who I had no seen since March. I let them know about Mr. Sprocket’s recovery and his latest challenge. In July, he completely tore is long head biceps tendon. Hopefully when I have time, I’ll try to update everyone on how he’s doing.


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