Michael Gargiulo Case: Pretrial Hearing 6

 Michael Thomas Gargiiulo, date unknown

I don't know if I missed one or two hearings for this case while I was out with a serious upper respiratory infection. Sprocket.

EXCLUSIVE GARGIULO CASE COVERAGE HERE
Last pretrial hearing attended 11/28/12
 
Monday February 25th, 2013
8:20 am.  I'm back on the 9th floor and it's eerily quiet. Such a change from last Friday.  A young man is trying to get into Dept. 106 to file a motion but is quite disappointed when I tell him the courtrooms don't open until 8:30 am.  He asks if I know if they are accepting filings on the second floor right now, and I tell him that I honestly don't know.  (I've never filed a motion in a courthouse before.) Even though the doors don't open until 8:30 am, I'm betting that the courtroom clerks and support staff are there much earlier, getting set up for the day.

I tell the young man there most likely are staff inside already. I also ask if anyone knows he's coming.  He says, "No."  Fortunately, he is able to obtain the phone number for Dept. 106 and reach the clerk. Wendy comes and opens the door.  The young man is happy he didn't have to wait to get his motion filed.

It's 8:26 am. I'm not positive, but I 'think' I see DDA Deborah Brazil at the other end of the hall, pushing a large cart loaded with files into Dept. 101 or 102.  It certainly looks like her from here.

A few counsel arrive at this end of the hall, waiting for courtrooms to open.

8:33 am.  I see DDA Daniel Akemon quickly striding down towards this end of the hallway.  He gives me a quick smile and says hello.  Once inside Dept. 108 I take a seat in the second row. I'm in the gallery by myself.  Akemon goes over to the clerks counter, checking various files.  The pretty court reporter comes out and starts to set up her equipment.

When Akemon is finished going over files at the clerks he tells me that Judge Ohta is not here and won't be here until 10 am.  Akemon chats with the court reporter then spends a bit more time going over his files.  When he's finished, Akemon and I have a short chat about a friend we have in common, former DDA Alan Jackson. 

9:45 am. Gargiulo is brought out from the jail holding area.  He's wearing black framed glasses. His hair is still short, but his mustache appears to be larger, fuller, almost taking over part of his face.  It's a noticeable contrast against his white skin.

I believe Judge Ohta asks about discovery.  Akemon replies that discovery is almost completed from the people's perspective. He's audited the file and came up with another five hundred pages.  He tells the court the people will turn over to Mr. Gargiulo in the next couple of weeks.  "In the next month or so, we will have turned over all our discovery so far," Akemon adds.

Akemon then tells the court that he has filed under seal a list of witnesses and contact information that will be turned over to the defense via the investigator, Mr. Filipiak.  Then, the people will have fulfilled their obligation to turn over discovery. 

Judge Ohta goes over the documents Akemon just described.  Ohta states he has one sealed copy and one unsealed copy.  Akemon explains that the sealed copy is for the court and the unsealed copy is for the investigator, Mr. Filipiak.

Akemon also tells the court that he spoke to Mr. Filipiak last week over computer data files that were turned over.  Apparently, some of the files were corroded and he resent those files to Mr. Filipiak.

I'm not certain if Gargiulo then speaks up or if Judge Ohta addresses him first.  Judge Ohta asks Gargiulo, "Do you wish to be heard?"  Gargiulo responds, "Uh, yeah. ... I'm not sure ... (I have?) ... not received a complete audio (?) yet."  (My notes are not clear, but from memory, Gargiulo is indicating he doesn't believe he has copies of everything from the people.)

The court asks, "Did you ask Mr. Filipiak to be present?"   The court then explains to Gargiulo that, normally, the discovery process is an informal process.  Normally, there is not a court hearing for each time discovery is turned over to each side.  I believe Gargiulo then tells the court, "There are some other issues..."  I believe Judge Ohta asks Gargiulo, "Do you have any objections regarding (the) protective order on witnesses?"  Gargiulo replies, "No, I don't."  I think it's Akemon who offers, "His investigator will get copies."

Judge Ohta then states there are two additional items before him.  It appears Gargiulo has written two motions.  He is asking the court to order that he receive copies of the "... first few months of..." court transcripts.  Gargiulo is claiming that there "...seems to be an error on the court docket..." From what I'm gathering, Gargiulo has copies of the clerks notes of prior proceedings (court appearances that he was present for) and is claiming that there's an error on the clerks notes of what transpired in court.  Gargiulo would like to see the court transcripts from June (10th?) 2008 to May 2009.

The court appears surprised.  I believe Judge Ohta states.  "That's almost a year. ... That's a lot." I believe the court then asks, "What motions?"  Gargiulo tells the court, "There are fundamental errors..."

Ohta goes over the motions that are in front of him.  "You say there's some possible constitutional violation of rights ... of search and seizure .... and violation of that and .... you need transcripts ... I'd like for you to identify the specific dates, or series of dates ... for me to order trial (transcripts) for an entire year."

I believe Gargiulo responds that there are some issues between those dates, June 10th 2008 and May of 2009.  The court asks, "How many court appearances do you think were made between June 2008 and May 2009?"  Gargiulo responds, "Between nine or ten ... when I'm counting off the docket."  DDA Akemon offers, "I have at least five but my records are incomplete."

The court responds, "The suppression motion, we would not have anything that the court reporter took down."  Judge Ohta appears confused by what Gargiulo is claiming.  Gargiulo states this "... has to do with constitutional error."  Judge Ohta asks more questions.  Gargiulo makes it clear that this has nothing to do with Mr. Lindner.  Gargiulo clarifies that more than once and he then says it has to do with the public defender's office.  Judge Ohta responds, "How does that have to do with .... since you are representing yourself?"  Judge Ohta mentions more than once, that he doesn't understand how his sixth amendment rights have been violated since there hasn't been a trial yet.  There has been no trial.

Judge Ohta then goes in another direction.  "Let's say that's taken place.  What is your remedy? ... There is no remedy."  The court then explains court procedure to Gargiulo and asks, "What are you trying to undo?"  Gargiulo states, "There are fundamental errors that the court has made. .... Defendant was without counsel, which is a great error."  I believe Gargiulo tells the court he is trying to save the court's time by limiting the scope of transcripts.  Judge Ohta responds, "Not if you raise the issue of ineffective assistance of counsel. ... What are you trying to undo?"

Does Gargiulo feels there was a nine month period where he was not represented?  I'm almost lost here.

Gargiulo then states that there was a violation of his sixth amendment rights.  Not only was there a violation of his sixth amendment rights, but also his fourteenth amendment rights. "There are many motions I'm going to have to file," Gargiulo continues.

Judge Ohta patiently explains court procedure to the defendant, and how court transcripts would typically be ordered.  "You are saying something happened way back when."  Judge Ohta continues with what he thinks Gargiulo is trying to convey about motions that were or were not filed back then and that the defendant needs the court transcripts. Ohta continues, "I'm ascertaining .... whether to grant that request."

Judge Ohta then gives the defendant a condensed civics lesson on the two amendments to the constitution that he claims were a violation in relation to him, and this court case.  "the sixth amendment is ineffective counsel, and there has not been a trial yet. ... the fourteenth amendment applies to the States Bill of Rights. .... to States, not individuals."

As a side note, people usually spend months and months studying amendments to the constitution to fully understand them and their application under the law.

The court continues, "If you can (particulate? articulate?) it down to less than that, based on what you're saying, I can then possibly (rule?) to (find) good cause ..." (to grant his motion).  Gargiulo states he needs the depositions in order to file a habeus corpus motion.  By requesting such a broad section of transcripts, Gargiulo tells the court, "I'm trying to save the courts time."  Judge Otha explains that it's not his responsibility to save the courts time.  Gargiulo states again that there has a been a violation of his rights to counsel.  Judge Ohta rules, "At this time, I would not be signing an order for transcripts today."  Gargiulo is asking for a medical order to be signed and I believe Judge Ohta agrees to that.

Then Gargiulo brings something up about sending mail over to Dept. 123 exparte.  I believe there's some problem with the defendant receiving his court funds in a timely manner. He's trying to file motions for funds.  Judge Ohta explains to Gargiulo the way it should be done and that he should ask his investigator, Mr. Filipiak to do it for him.

Gargiulo tells the court he hasn't been able to get speak to Mr. Filipiak for two weeks.  If my notes are correct, I believe Judge Ohta inquires about getting Mr. Filipiak to the courthouse today.  I'm not sure who mentions it, but it's revealed that Mr. Filipiak is in trial in Federal Court.  Akemon offers to contact him. He takes out his cell phone and sends a text to Mr. Filipiak. He tells the court that he texted Mr. Filipiak that Mr. Gargiulo needs to see him.

Mr. Filipiak calls the courtroom and Judge Ohta approves for Gargiulo to scoot over on his chair to the sheriff deputy's desk to take the phone call.  "I'm sorry to bother you. I"m trying to get a hold of you to get motions filed for funds. ... I'm sorry to bother you at this time."  The call ends.

Akemon tells the court he needs two weeks to get the discovery completed and asks for a return date of March 25th.  The court states they will be out that week.  March 20th is the next return date.

My thoughts.  I will be quite surprised if this case goes to trial by 2015.  As of this date, Gargiulo has not filed a single motion to have defense experts appointed to do their own DNA testing.  There will be many motions filed by the people to have evidence presented at trial.  Gargiulo will have to prepare opposition motions to those motions.

Next hearing March 20, 2013

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