Michael Gargiulo Case: Pretrial Hearing 7 & Dmitriy Sheyko Sanity Ruling

Michael Thomas Gargiulo, possibly on arrest date.

 EXCLUSIVE GARGIULO TRIAL COVERAGE HERE

Previous hearing on 2/25/13

UPDATE: April 5th spelling, clarity
March 20th, 2013
I’m in the elevator bay of the downtown criminal court building.  It’s very busy and the elevators are slow.  DDA Paul Nunez sees me before I see him and slowly saunters over to say hello. Nunez asks me how Matthew is doing on his book.  I tell him it’s going well. Nunez is wearing dark suit with a light shirt that has the faintest blue check pattern.  The shimmering sky blue tie is a nice complement to the shirt.

Nunez then tells me, “I’m leaving the building.”  At first I think he’s leaving the DA’s office, but he then tells me that he’s been promoted to head the East LA DA’s office.  Paul makes sure to add, “It’s a small office.” I congratulate him on his promotion, but will be sad not to see him around the downtown courthouse. 

I tell Paul that I’m here for a Michael Gargiulo hearing in Dept 108.  Paul knows this is DDA Akemon's case.  Paul and I ride up to the 9th Floor together.  He tells me he has a hearing in Dept 102.  I’m going to the other end of the hallway, but I thought I’d hang out with Paul for a bit while he tells me about his case involving a former attorney.

At this end of the hallway, defense attorney Mark Werksman approaches Nunez and I step away so they can chat privately.  Werksman defended James Fayed and he is representing the defendant in Nunez’s case.  After they are finished talking, I reintroduced myself to Werksman.  I wanted to tell him that I saw him on TV recently.  It was some documentary crime show from long ago and in the middle of the show I recognized a much younger, very handsome Werksman defending the man charged.  It brought a smile to Werksman’s face.

Donald Re, who is defending Gerhard Becker on involuntary manslaughter charges was also happened to be on the 9th Floor at that end of the hall, but I didn’t get an opportunity to say hello.  It appeared that he was meeting with clients.

I get back down to the other end of the hallway just in time for Department 108, Judge Ohta’s courtroom to open.  A cameraman with the large video equipment comes into Dept. 108, uncertain if he is in the right courtroom.  He’s here for a ruling in another case, Dmitriy Sheyko.  The bailiff informs the cameraman that filming requests are usually denied in this courtroom, but he will check with the court clerk, who is away from her desk at the moment.

8:38 AM DDA Daniel Akemon arrives and says hello.  A few moments later the bailiff tells the cameraman that he is in the right courtroom for the Sheyko case, however, the video request by his network (I believe it was local ABC Channel 7) was denied by the judge.

There are two people in the well of the court that look like they are with the DA’s office and a reporter in the gallery behind me, Elizabeth, (sp?). I introduce myself and she tells me she works for City News.  Elizabeth asks the bailiff about the same case as the cameraman.  DDA Akemon and I chat a bit.

One of the women DDA’s in the well asks Akemon if she would sit in for her at a hearing where they are just going to hold the case over for another month.  I hear her tell Akemon that her defendant is not here and it will take time to locate him.  Something about him possibly missing the bus from the jail.  She’s in trial in Pasadena, and she needs to get back as soon as possible.  Akemon agrees to step in.  She gives him date ranges on when her calendar is free to return.  With a smile, Akemon tells his colleague, “No problem, I’m glad to do it.  Makes me feel useful.” Akemon goes over to the clerks desk to let the clerk know he will be stepping in for the female DDA.

I note there is a new full container of Red Vines on the clerks counter next to the wall.

The next person who enters  Dept. 108 is DDA Sean Carney, which tells me the case he’s here for is Sheyko, an arson case.  This case is the same one that the City News reporter is here for.  Vania Stuelp from local ABC 7 arrives and says hello.

While we wait for Judge Ohta to take the bench, DDA Nunez (his hearing must have finished quickly) steps into Dept. 108, takes a seat in the gallery and chats with his friend Akemon and Carney.

I’m not positive I heard the conversation correctly, but I believe Akemon and Carney jokingly asked Nunez how he wants to be announced (referencing his recent promotion).  I was amused by his triumphant reply.

While I listen to the DDA’s chatter, I note that Akemon has on a similar shirt as Nunez’s, except there is a tiny additional faint line of brown in with the blue check.  Carney is wearing a red diamond patterned tie with his white shirt and dark gray suit.  Nunez tells the group his last day in his current unit, JSID (Justice System Integrity Division) is next Thursday.

9:15 AM Judge Ohta takes the bench.  The defendant is brought out.  He looks very young and he’s wearing a yellow, county jail top with blue pants.  It’s my understanding that this designation of color usually signifies some type of mental/drug or alcohol issue.

People v. Dmitriy Sheyko is called. This is the case the media is covering.  Apparently, Judge Ohta is to rule on whether or not Sheyko was sane at the time he committed his crimes.

The parties identify themselves for the record.  I believe the defendant has a public defender, the people are represented by DDA Carney.  Judge Ohta states something to the effect that this is a sanity trial on this matter.  The court took the matter under submission. Judge Ohta states he reflected on it, went over materials and is ready to render a verdict.

Carney informs the court that he did submit a translation of the audio and video clips of Cheyko’s interview (with police).

Judge Ohta then begins to read his his ruling.  On September 21st, 2012, the defendant entered a plea of not guilty by virtue of insanity.  The defendant waived a jury trial. He waived the original plea and admitted guilt on all 22 charges.  Sanity charge...  Judge Ohta goes over all the evidence that was presented at the sanity trial.

Judge Ohta then describes in detail the law covering insanity and reads from the specific law.  There are, um, conditions (tests?) that must be met before Judge Ohta can give a finding of not guilty by reason of insanity.

Judge Ohta reads the specific code number (I'm not sure I got it right), a preponderance of the evidence, and the burden of proof is on the defendant as shown.  Judge Ohta mentions (I believe) the M'Naghten Rule test, a right and wrong test, irresistible impulse test.

The crimes occurred over four days in April, 2011, at four different locations. An expert on schizophrenia interviewed the defendant of a few dates. I believe Judge Ohta states the interviews were on March 27th and April 17th, 20112.

A Dr. Cohen testified the defendant was legally insane at the time of the crimes.  Dr. Cohen states the defendant made odd statements at the time of his arrest.  The Dr. felt the statements were bizarre, such as, “Are there cameras?”  And, also states the use of an alias made no sense.  The defendant said, “I shouldn’t commit crimes in churches. I know I shouldn’t do that anymore.”

Dr. Cohen testified the detectives assumed that the defendant understood the statements he made about his crimes.  Dr. Cohen testified that the defendant’s behavior is unorganized. It’s nonsensical. 

Dr. Kanapeck (sp?) testified that the defendant was able to sit calmly and cooperate with detectives.  He was evasive and did not answer questions.  Dr. Kanapeck (sp?) testified that was not characteristic of someone in a psychosis episode.  He was extremely evasive in his answers, and attempted to escape culpability.  Dr. Kanapeck (sp?) testified that individuals who are truly psychotic do not have the capability to be insightful.  Regarding his actions, he knew, he stated that his actions were wrong.

Judge Ohta finds, the defendant was aware of his actions and knew the sequence of his actions.  His repeated behavior over several days indicates he was aware of his actions.  His curiosity was satisfied by fire.  Judge Ohta mentions all four locations. 1. A burglary at the Fresh & Easy; 2. Arson Temple Israel; 3. Burglary at Richard Simons (sp?) residence; 4. Arson Beverly Ridge.  (I believe I have the locations correct.)  Judge Ohta states, he knew that the drum he destroyed was expensive.  He acknowledged that drums are expensive. 

Judge Ohta stated, that, while the court has sympathy for the defendant’s mental illness, that does not (excuse?) his actions.  Just because someone suffers from schizophrenia, does not necessarily mean someone is insane.  The defendant failed to carry his burden.

Judge Ohta rules.  The court “finds the defendant was legally sane. ... Next step is sentencing.”

Judge Ohta states he’s not thought about sentencing and is not prepared to go forward with it at this time.  He asks for recommendations from counsel, and tells them that sentencing does not need to occur immediately.

(At some point that I miss, the court goes off the record to discuss possible sentencing options.)

DDA Carney throws out the possibility of the prosecution recommending to the prison board, psychiatric care in the State Hospital.

Judge Ohta states he is willing to entertain any and all recommendations.  Carney states he will submit a recommendation.  The defense attorney states she would like a hearing.  In county, the defendant is only receiving medication.  Not really any type of treatment.  She also informs the court that there are not outside mental health facilities that will take someone convicted of arson.  The defendant has quite a bit of credit.  He’s been in custody since April 2011.

Judge Ohta states the court is allowed to make a recommendation to the State Hospital, but he would not be able to stay once they are no longer able to help him.  The determination is ultimately made by the Board of Prison.  There is nothing Judge Ohta can do to compel the Board of Prison’s to follow his recommendation.

(I believe I remember someone saying, that those sent to the State Hospital are those who were found not-guilty by reason of insanity. There is no guarantee that this defendant will go to the State Hospital, even if the court recommends it.)

The defense attorney replies, “Call me a skeptic...”

Judge Ohta replies that he’s not aware of the public perception...”  He then asks about conservatorship.

DDA Carney replies that he will have to consult with his colleagues. He’s not familiar with (Doyle?) conservatorship, but he is with Murphy.

I believe the defense attorney informs the court, that the parents are very involved (in their son’s welfare) and reside in Sacramento.  The crimes occurred when the defendant had a mental break and ran away from home.  At the time he was under some type of treatment.  They are here in court today.  I see the defendant turn around to look in the gallery.  Seeing his parents, he smiles and waves at them.

Judge Ohta states that the defendant did enter a plea under 12.3.03.11 (I think I have that right).  The sentence can’t be suspended (for?) probation granted.  Judge Ohta addresses counsel. If the two of you are able to agree ... possibly vacate some of the charges ...  I wasn’t born yesterday. I can see what the problems are.  ... I could do low ball on all the charges and he’d be done but then there is no supervision.”

DDA Carney steps in and offers another idea.  Judge Ohta states his hands are tied.  I believe it’s Judge Ohta who states that he doesn’t see it as a person that is going to be a problem in the future.  Judge Ohta states he waxes on what happens and try to figure out what’s best.

The parties discuss other options.   Judge Ohta then addresses counsel.  “Why don’t the two of you talk. ... If you want to involve me ...”

Carney tells the court, “I have a little bit more concern than the court has. ...some history of serial fire setting and conduct as a juvenile.”

Judge Ohta responds, I’m not unaware. There are people that cause huge monumental property (damage?) and loss of life.  ... I’m not one to do something out of fear ... (or) ... just on the possibility something might happen.”

Carney agrees to put the matter over for three to four weeks. He feels it is appropriate to explore these possibilities.  I believe the defense asks the court if they would like to hear from the parents again.

Judge Ohta responds, “The possibility of future crimes is always a possibility, and if there’s any info to possibly reduce that ...”

After all this off the record discussion, the court goes back on the record. The next court date is set for May 2nd and the calendar set at zero of 30 for sentencing.

DDA Carney tells the court that his upper management, Pat Dixon, is set to retire on the 29th.  He asks if they can wait.  DDA Dixon was the one (who made the decision) to go forward with this case.  Carney states he thought the court was very fair to both sides.  Carney doesn’t know who will step into Pat Dixon’s position.  Carney states he kind of predicted this result but knows that he wanted to help him (the defendant).  Carney states he has to look out for public safety.

I believe Carney also mentions that the crime of arson is outside the AB 109 realignment, and the defendant can’t get into the County system.

That’s it for this case.  The mainstream media leaves, Carney takes off and it's just me and DDA Paul Nunez in the gallery.

Michael Gargiulo
The Gargiulo case is heard next.  DDA Paul Nunez decides to stay for Gargiulo’s case.  I believe he’s waiting for Akemon so they can have coffee together.

When Gargiulo is brought out, I could swear his black fluffy mustache is even bigger than last week. It's a sharp contrast against his overly white skin. Mr. Filipiak is not here today.

Gargiulo filed a couple of documents and the prosecution filed an informal request for discovery.  Gargiulo filed an informal request for several items.

Someone, (Akemon? Gargiulo?) states there’s no need for the court to act on (them?) at this point.

Judge Ohta asks, “Where are we as to your position?  Gargiulo tells the court, “I’m in a situation where witness information is inaccurate and outdated.  ... So, not sure what they have worked out.  ... I’m missing 10,000 pages because the jail (is) in lockdown. ... haven’t had a chance to get investigator...”

Judge Ohta asks the prosecution, “Are you aware of issues regarding addresses?”  DDA Akemon states he’s not aware.  Akemon tells the court, “There are over 500 witness on the list and he updated that information from the file and law enforcement database. ... (I’ve) provide the best info we have. ... If (there are) any issues, Mr. Filipiak will be in contact with me.”

I believe Akemon informs the court that Mr. Filipiak is out of town. Akemon states he has a box (of discovery) for Gargiulo, about three to four thousand pages. These are cleaner copies of what the prosecution has provided in the past.  Akemon tells the court that Mr. Filipiak will be back in town next Thursday and he will come into his office and make arrangements to receive the materials.

Judge Ohta asks the parties when they would like to continue this matter.

Gargiulo tells the court this is his second informal request for obtain that information.

DDA Akemon tells the court, “There is an open case in Downey.  Mr. Gargiulo has been identified...” as a potential suspect.  I believe Akemon tells the court that another individual is also a suspect. It’s an open investigation.  “Mr. Gargiulo is not entitled to that discovery.”

Akemon tells the court that he obtained copies of the transcripts of all the court proceedings, which he has, that Gargiulo was looking for.  He’s made a courtesy copy of those transcripts and he will provide them to the defendant.

Gargiulo responds, “I’m very thankful for that.”

Akemon tells the court, the victim in the other case is Maria Rodriquez (sp?).  It’s a separate case. Mr. Gargiulo and other other person has been identified, but Mr. Gargiulo has not been charged.  The case is being investigated by Downey.  “...but no intent to file a charge in this case.”

Judge Ohta asks about discovery.  Akemon responds, “I think we are very close to 24,000 pages. The DA’s office is “still analyzing Mr. Gargiulo’s computers”  They are waiting for a report on that.  There is more investigation on other forensics that will be finished in another month or two.  Akemon continues, “... should be able to turn over all our discovery... by ... turned over in next two to three months. ... At this point, Mr. Gargiulo has 90 to 95% of discovery at this point.”

Gargiulo then tells the court that he issued subpoena’s for various law enforcement (manuals?) for a specific date (April 25th).  Judge Ohta informs Gargiulo that he is not in court that week.  The subpoena’s are regarding different police procedure manuals.  (And possibly for handwritten notes.)

DDA Akemon informs the court he’s not aware of any handwritten notes. I think it’s Akemon who tells the court he’d like to be heard (motion) on that issue.

Judge Ohta asks the defendant if he used the courts boiler plate forms (for the subpoena’s) and did he launch them with the court of simply issue them. I believe Judge Ohta asks if he has spoken to his investigator about the items.  I believe Gargiulo answers “No.”  Judge Ohta tells the defendant that he’s allowed to use subpoena duces. “Just because you use the subpoena power of the court, doesn’t mean you’ll get it. ... (It) makes sense to talk to Mr. Akemon first.” 

Judge Ohta explains to the defendant that they can either send documents to the court, appear and present the documents in person, or send someone to squash the subpoena.  Judge Ohta further describes the steps the defendant can take.

DDA Akemon asks to see the subpoenas.  “Looks like these three have been issued by Mr. Filipiak and I can work out with him...”

Apparently, Gargiulo is requesting procedural manuals from the Sheriff’s Department, and law enforcement radio communications in relation to the murder of Maria Bruno.  I believe he’s also asking for the jail procedures and policies.

I believe it’s Akemon who states he will get together with Mr. Filipiak. He will make a note of what Gargiulo is requesting and see if these are things he can have under 1054.  Akemon tells the court, “I don’t want there to be any discovery issues.  ... I would like to resolve (this).”

Judge Ohta asks the defendant, “Would you like to withdrawal (the subopenas)?”  Gargiulo replies, “That seems very fair. ... And see how...”

It’s agreed that the subpoena’s and Gargiulo don’t need to be brought out on the 25th.    The next court date, April 26th is set.  Akemon believes that’s enough time to resolve the discovery issues.  Judge Ohta sets the court calendar on that date as zero of 90.

And that’s it.  Akemon and Nunez head off for coffee and I head back to the Red Line train. The April 26th date will be decision time for me since the next Cameron Brown hearing is at the same time in Dept. 107.

Next hearing is April 26, 2013