Michael Gargiulo Case: Pretrial Hearing 3

 Michael Thomas Gargiulo booking photo, date unknown

EXCLUSIVE GARGIULO CASE COVERAGE HERE

Previous pretrial hearing 9/5/12

September 26th, 2012
Mr. Sprocket needed the car today so he dropped me off in front of the downtown criminal court building quite early.  I passed the next half hour in the building cafeteria before I headed up to the 9th floor.

The hallway outside Dept. 108 was virtually empty.  Sitting across the hall from me was youngish looking bald man with black framed glasses, wearing a dark brown ill-fitting suit, blue striped tie and tennis shoes.  He had a large tattoo on his neck that was partially covered by his shirt collar.

Promptly at 8:30 AM the bailiff opens Dept 108.  I'm the first person inside the courtroom.  I take a seat in the second bench row next to the aisle.  The benches in Judge Ohta's courtroom are completely covered in cushions. Over on the counter by the clerk's desk next to the wall I notice there is a large plastic container of Red Vines® Licorice.

8:35 AM The pretty court reporter comes out from the area behind the bench and starts to set up her equipment.  A few moments later DDA Daniel (Dan) Akemon arrives and goes up to the clerks desk.  From the paper's he's shuffling around, I'm guessing he might be filing a motion.  Akemon is wearing a very dark colored suit, almost black with a white shirt.

Judge Ohta comes out from his chambers and goes up to the bench for a moment.  He's wearing a very light baby blue shirt with a striking pink tie with matching blue stripes. He's not in his robes yet.  DDA Akemon sets a copy of his motion on the table exactly where the defendant will be seated when he's brought into the courtroom.

DDA Akemon then passes where I'm seated in the well, smiles and says hello.  We introduce ourselves, and I make sure to check with him that I'm pronouncing his name correctly.   After I explain to him who I am, Akemon tells me, "I thought you were a witness." I tell him that I'm very interested in this case and that if he knows DDA Paul Nunez, Nunez knows about me and my work.  Right then the defense investigator Christian Filipiak arrives and Akemon asks him if he's met me.  I remind Filipiak that I met him two hearings ago when I asked for his business card.  Filipiak is wearing a very nice suit.  I can tell from where I'm sitting that the exact color is hard to describe.  When the harsh fluorescent lights hit the weave, it gives a hit of dark olive threads and occasional burnished gold.  He's wearing a geometric patterned tie that matches perfectly.

The counsel for the current case being tried in Judge Ohta's court arrive and set up their computers and files.  Judge Ohta's clerk, Gloria, comes out from the back area.  Judge Ohta casually chats with the current case attorneys about the problematic NFL call by the alternate referee's on the field.

Akemon and Filipiak continue to chat amicably in the well while now Judge Ohta reads a document related to his current case.  Judge Ohta says something to the effect that he doesn't think the document is a declaration against penal interest.

8:53 AM Judge Ohta, who is now in his robe, asks Akemon and Filipiak if they are ready for the defendant to be brought out.

8:57 AM  Gargiulo is brought out.  He's in waist chains and he's cuffed to the chair.  He's wearing an orange jumpsuit with white long johns on underneath. His hair is still trimmed short and he's wearing the new glasses that Filipiak had obtained for him. He's carrying the green canvas looking satchel again.

Gargiulo hands some papers to the deputy who looks over the papers and hands them back.  Gargiulo then hands the papers over to Filipiak.

As I take one last look around the courtroom I notice two suited gentlemen sitting on the right side of the gallery.  I make a guess they are detectives in the current case.

We go on the record in the Gargiulo matter.  Judge Ohta records who is present, Akemon, the defendant representing himself and his investigator Filipiak is sitting beside him.

Judge Ohta states the issue concerns discovery and whether or not limitations can be placed on what the defendant is able to have on his person, in his cell at the LA County, Men's Central Jail facility.

Judge Ohta states he has read the prosecutions motion to limit discovery.  He's taken a look at the defense opposition motion titled "Defense Demand for Discovery."  Judge Ohta has also read the (decision? letter? statement?) of the LA County Sheriff's Dept., dated September 21st.  He's also read the very first motion (and the?) people's discovery motion.

Judge Ohta states, "I am prepared to rule."  He also mentions a motion the prosecution filed under seal containing autopsy (and? crime scene?) photos.

Judge Ohta states that Mr. Gargiulo had received some discovery.  There was some black and white material (photos?).  "I've seen what he possessed."  The main question (is) whether those (documents?) contain (names?) and addresses of those victims.  "I went through the entire (?) in camera and (found that?) there were addresses given over to the defendant.. (snip) In those (thousands? of pages?) There were photographs... (snip) given over to counsel prior to pro per (status).

Akemon states his motion under seal was for the judge to review.... and Judge Ohta basically states that he's already seen the photos (via that review).

Akemon continues, "Our position..... if counsel turned over previous discovery... our position is he not have (that)."  Ohta responds, "I don't know what he's had previously."

Judge Ohta asks each side if there is any further argument.  Both Akemon and the defendant have no further argument.  Judge Ohta states his ruling in the matter before the court. The prosecution seeks to place a court order of.... Judge Ohta is now reading directly from the prosecution's opposition motion.

When I hear the words from the prosecution's motion, I stop taking notes.  Judge Ohta first addresses that his responsibility is not the policing of the jail facility.   His job is to supervise the trial.  He reads from trial court procedure his "inherent power to act" to supervise the trial, and whether or not it's appropriate to act (specific to?) the prosecutions motion.

Judge Ohta states that the protection of victim's rights "seems to fall under that parameter."  I believe he then reads from a prior court ruling and also states that the defense motion did not present any arguments as to why he needed the photographs "twenty-four seven."

Judge Ohta did mention that although the defendant is in a cell by himself, there was a possibility that the photos could be lost or stolen while in his possession.

Judge Ohta rules, "For those reasons.... the photos of victims will be kept in the possession of the (defense) investigator."  Mr. Filipiak will make the material available to the defendant as he needs it.

His order may be amended (in the future) if (I believe he says if other arguments are presented).

Judge Ohta states his order covers photos depicting victim's bodies.

Gargiulo asks a question whether this covered "all photos."  Judge Ohta replies, "Photos depicting victim's bodies."

DDA Akemon informs the court that they have made great strides in the discovery process.  They have turned over to Mr. Filipiak a hard drive containing most of the discovery.

The next item that's discussed is the subpoenaed discovery that has been delivered to the court.  He's asking for permission to open the discovery, make copies for the prosecution and defense and then return the discovery back to the court.  There are "132 items on the list" of subpoenaed discovery.

I believe Akemon states he has turned over digital media. "I don't know if Mr. Gargiulo has any other written discovery...."

Gargiulo then tells Judge Ohta that he objects to having all his discovery on yellow paper in his cell.  "The issue being.... it's very hard to see... hard to read through it."  As far as the deputies searching his cell.... "I'm the only person with yellow paper..."  Judge Ohta responds, "I don't know if it's an entitlement issue..." Gargiulo states, "There's no safety issue."  DDA Akemon informs the court, "The sheriff required the yellow paper. (snip) The (order was?) signed by the commander of (the jail)."  Judge Ohta responds, "Then the sheriff's office needs to come here."

Gargiulo tells the court that he's being singled out.  Other pro per's don't have their court documents on yellow paper.  Akemon tells the court he would stipulate to that.  I believe Judge Ohta asks a question and I believe Gargiulo responds that he doesn't see anything in the custody manual (about) having his court papers on 'yellow' paper.  Gargiulo states he's "...just trying to be treated like any other pro per."

Judge Ohta informs Gargiulo, "Unless you have a fundamental right at issue, or ... (snip) important interest at issue...."  (My notes are not clear, but I believe it's Judge Ohta that continues with) "So, if they have a reason with ... in your case.... they probably would be able to show a need..."

Judge Ohta states hes not ruling on that.

Gargiulo tells the court, "There is a rule in the manual.... we are to have all paper in a separate place at all times for search purposes. (snip) And all paper is bate stamped to be able to identify it as legal (court documents)."

Akemon interjects, "I think this is also something that protects Mr. Filipiak. (snip) Also designed to protect him as well."

Judge Ohta tells the parties, "I'm not here to sit over (the?) trial on every single little dispute that could arise. (snip) It should not (ought) to be before me. (snip) If you object to yellow paper (policy) .... then (the) sheriff deputy needs to come here ... if they are able to persuade me. (snip)  As I said in (the) ruling I made regarding.... (snip) This court is not the police over jail policy. (snip) I'm not a civil court. (snip) That's not my job. (snip) My job is to oversee aspects of this trial. (snip) What goes on in the jail regarding what color of paper is outside my duty.  (snip) So, I'm not here to deal with anything and everything to deal with this case."

Judge Ohta asks the defendant if there's another color of paper that he could have his discovery printed on.  The defendant asks for "white."  Then Judge Ohta comments on whether "white" is a color in the color spectrum.  After a bit more back and forth between all parties, Judge Ohta tells the defendant to do what he wants. Print his discovery on any color he wants, however, "you run the risk" that the Sheriff's Office will confiscate it again.

Akemon tells the court that he has conducted an inventory of the subpoenaed materials and if Mr. Gargiulo is in agreement to release the evidence.  Judge Ohta explains in painstaking detail to the defendant that the prosecution will take the subpoenaed documents, photograph them. The original will come back to the court file.  The prosecution will make copies and one for you.  Gargiulo agrees.

Now, they just need a new pretrial date to work on more discovery issues. Monday, October 29th is selected and the case calendar is set at zero of 90 on that date.

Mr. Filipiak asks the court his position for bringing photographs to the jail since he ruled the photos contraband.  Judge Ohta is clear to Mr. Filipiak.  He has not ruled the photographs as contraband.  My guess is, that Filipiak could get into trouble with the Sheriff's Office if the photographs were ruled "contraband."

Akemon asks that the photos in his motion today remain sealed.  Judge Ohta agrees.

Gargiulo asks Judge Ohta about the other motions he's filed that Judge Ohta said last time he would look at.  These were his requests to have one hand free in the attorney room at the jail and getting boxes to have in his cell to keep all his discovery separate.  Judge Ohta quickly looks over the motions.  Judge Ohta states he will take input on these issues from the Sheriff's Office to check on their policy.  Judge Ohta tells the defendant that they will address this at the next hearing and he will make a ruling on it.

And that's it.  I wait outside Dept. 108 in the hopes of speaking to DDA Akemon, but he exits the courtroom in deep conversation with Mr. Filipiak and then goes directly into Dept. 104, Judge Perry's courtroom.  Christian Filipiak and I take an elevator down together.  He asks me a few questions about my blog and how long I've been writing.  I find out that Filipiak usually works as an investigator in federal court where he has had the experience of being an investigator for defendants who decide to represent themselves.

Next hearing date is Monday, October 29, 2012