Friday, June 14, 2013

Michael Gargiulo Pretrial Hearing 9

Michael Thomas Gargiulo Case QUICK LINKS

8:20 AM
I'm up on the 9th floor of the Criminal Justice Center waiting for Judge Ohta's courtroom to open.  The floor is pretty empty at 8:18 AM, but not surprising for a Friday.

While I was in the lobby waiting for an elevator, I overheard the following:  "I have an appearance with Judge Perry at 8:30 AM. What time do you think I'll be done.... 8:34 AM?"  I have heard people say that Judge Perry moves things along very quickly in his courtroom.  It's my opinion that voir dire for the month long Lazarus trial was completed in record time.

On May 24th, I missed the last hearing on the Gargiulo case because of verdict watch in the Kelly Soo Park case.  It's my understanding that Judge Ohta has not approved journalists to use their laptops for note taking in his courtroom.  I will have an update on today's hearing much later tonight.

For those of you who haven't been following this case, Michael Gargiulo is alleged to have killed two women and attempted to kill a third.  You can read about it on the Michael Gargiulo Quick Links Page.

6/15 11:15 AM
Friday morning, 6/14:

I'm finally inside Dept. 108.  DDA Akemon checks in with Judge Ohta's clerk, Gloria.  Akemon is wearing a  muted dark suit, light blue shirt with a dark navy patterned tie. There are several people in the well for another pretrial hearing.  The defense attorney that represented Gargiulo for four years, Charles Lindner has been invited to attend the hearing today and get up to speed on the trial.  Lindner is the "stand-by" counsel in the event that Gargiulo decides to end his pro per status.  I had asked around about Lindner last year, to try to understand why Gargiulo rejected his court appointed counsel.  Everything I heard about Lindner was positive.

Also here today is DDA Garrett Dameron, Akemon's co-counsel.  Dameron's suit looks to be dark charcoal, with a light gray shirt and burgundy and gray patterned tie. With Dameron is a Pepperdine law student who is clerking with them for the summer. I'm sorry that I did not at least write down his first name. He's a tall, handsome young man who is in the US Marine Corps and served in Afghanistan. I could easily see him on US service recruitment posters.

There are several counsel in the well for the other pretrial hearing.  I am catching glimpses of Dameron and the clerk's conversation about the clerk's military service and where he currently does 'drill.'  Apparently Dameron and Akemon were also in the service, but different branches from each other.

There is a female defense attorney sitting at the defense table. Another defense attorney, a man with white hair is chatting with two other counsel who are seated in the well in front of the jury box.  The white haired counsel tells the clerk staff they are ready, but the defendant is not out yet.  The pretty court reporter comes out and sets up her equipment.

A senior bailiff I recognize from the Spector trials opens the door from inside of the jail holding area to look in for a moment. Another bailiff enters Dept. 108 from the hallway and goes into the back area behind the clerk's desk.  I expect the other hearing will go first.  I think I see Judge Lomeli from Dept. 107 at the clerk's desk but I'm not positive.  The white haired attorney goes into the gallery to speak to a woman in the back row.

9:02 AM 
We're still waiting. The gallery gets a bit restless.  Judge Ohta's bailiff is a handsome black man who wears a slight mustache.  He has a great smile. The white haired attorney nervously paces in the well.

9:15 AM
Judge Ohta takes the bench and throws the light switches that turn on the spotlights directly over his bench.   One of the counsel in the well sitting in front of the jury box asks Judge Ohta off the record which high school Judge Ohta played football for.  There's a conversation now about the sport and which attorney played where, and who played college football.

Two defendants are brought out, handcuffed together.  One defendant wearing black framed glasses is short and completely balled.  The other has dark hair and looks a bit younger.  Both defendants give a smile and quick wave to people in the gallery.

The current status of the case is discussed. Apparently, there is some issue of sentencing. They are also waiting for a Mr. West who isn't here, or is having difficulty getting here.  DDA Dameron will step in for DDA Dean, who is also late or can't be here.  The white haired attorney tells Judge Ohta that Mr. Dean intends to file an opposition but hasn't done so yet.   Next hearing will be June 28th and they are placing all attorneys on call.  At that hearing there will be a motion for a new trial.  After the hearing is over the gallery empties out.  The clerks gets the names of the other counsel seated in the well for the record.

Judge Ohta asks, "Are we ready for Gargiulo?"  DDA Akemon tells the court, "We invited Mr. Lindner. ... We set this date specifically to accommodate Mr. Lindner."  Judge Ohta's clerk speaks up and tells the parties that she spoke to Mr. Lindner and he will be here by 9:30 AM.

Another case has a pretrial hearing and DDA Dameron steps in for Mr. Moran (sp?).  No defendant is brought out and no one steps forward from the gallery.  The hearing is quickly over. The defense attorney speaks to three people in the well, telling them they will have to come back.

9:20 AM
Charles Lindner arrives.  He's in a wheelchair that's being guided by a man I later find out is his son, named 'Dave' or 'David.' Lindner lost his left leg mid thigh.

Akemon greets Lindner and introduces Dameron and their clerk.  They discuss the DDA's recent motion.  Lindner is just here to observe. He won't be part of the proceedings. When Lindner finds out that I'm with the media, he makes a point to tell me that anything he says here is "off the record." That's unfortunate because Lindner is an engaging, larger than life character.  He shared some stories with Akemon and Dameron that are very interesting and humanizing.  Lindner's son who is with him is five classes away from finishing law school.  They discuss the different law schools that the DDA's clerk and Lindner's son are attending.

When Judge Ohta's clerk comes out of the back area, Lindner has a big smile and gives her a musical greeting using her name.

9:40 AM
Judge Ohta takes the bench.  Judge Ohta greets Lindner. There is some friendly banter between Lindner and Judge Ohta. Judge Ohta's tie is discussed as well as David's classes left at law school.  Examples of multi-defendant cases with potential death penalty are discussed.  So far, there is a terabyte of discovery by the people to be handed over to Lindner.  It's my understanding that the people have turned over almost 30,000 pages of discovery so far to Gargiulo.

Gargiulo is brought out.  He looks about the same as I saw him last May. He still has pale skin from being incarcerated and his mustache is still toned down in size. Judge Ohta goes on the record.

Gargiulo is informed that his stand by counsel was asked to appear.  Judge Ohta states they are still discussing discovery.  Akemon tells the court they are still in the discovery process and they filed their second informal request for discovery today, mailing it to Gargiulo.  Case is at zero of 90 today. 

The people have not received any discovery from Gargiulo. The prosecution will, at some point be completely finished with their discovery this summer.  They are still waiting on some expert results reports.  They hope to receive all of that by July or August.

Judge Ohta states that Gargiulo filed several documents today.  Addressing Gargiulo the court states, "You also gave me something called a contract...?"  Apparently, the people were going to prepare a stipulation.  I believe Gargiulo states he received the stipulation from Mr. Filipiak.  "Some stuff was ... I disagreed with."

This all has to do with the second Downey murder case.  "I want them (the people) to stick to their word they are not going to use (that) case as 1101b..." Garguilo tells the court.

Akemon tells the court that the people stipulate that, regarding the Maria Rodriguez (sp?) case, they would not use the evidence in that pending case, in this case whatsoever.  Gargiulo tells the court that he is opposing the language that the people put in their stipulation.  Akemon tells the court they are not going to change the language in their stipulation.

The people are opposed to turning over that open, active investigation.  Akemon tells the court they won't open the murder book on the Rodriguez case to Gargiulo.  Mr. Gargiulo is not going to stipulate, so the next step is we need to litigate.  Mr. Gargiulo needs to file a motion to compel.

I apologize. My notes are not clear who is speaking here. They (people) used information in that case so that's discoverable. Information in that case was used to arrest (the defendant).

Judge Ohta states, "Let me step back and observe. ... The two of you were in agreement regarding the stipulation. ... Seems both sides were in agreement. ... But in the people's stipulation .... language was objectionable. ... What language issue was objectionable?"

Gargiulo tells the court the issue is the language that states he waves his right to appeal. "I'm not willing to waive my appeal (rights)."  Gargiulo is concerned if the people try to use this information, later.

Judge Ohta informs Gargiulo, "Well, I would prevent that."

If the prosecution indicates they are not going to use (this information) in their case in chief, it soulds like as long as no additional evidence develops, they won't use it in penalty (phase).

DDA Akemon adds, We're not foreclosing (the issue). If new evidence develops, and Mr. Gargiulo is charged....

Akemon states that if new evidence is developed in that case, a new charge would be brought, but this specific case before the court now, the information would not be used.   Gargiulo needs to file a motion to compel.

Gargiulo states, "I'm not willing to give up any appellate rights in this matter."

Judge Ohta explains to Gargiulo, "When a defendant goes 'pro per' he is, in essence, waiving those rights. ... You're waiving your right by representing yourself. ... I can assure you that I will not allow the prosecution to use that information when he's already said he won't use it."

Judge Ohta goes on to explain the contract principles of the court of law.

Gargiulo adds, "As long as that's my understanding..."

Judge Ohta tells Gargiulo, "You need to step back ... and decide what you want to do ... and decide what you're going to do. ... I'm not advising you what you should do.  Just making you aware of .... what a stipulation means."

Mr. Akemon say they are continuing to investigate (the Downey murder). And if they do develop new information....

Judge Ohta addresses Gargiulo. "Why don''t we have a very short turn around. ... How much time do you need to reflect?"

Gargiulo responds, "Two weeks."

Dates are passed back and forth. Gargiulo is requesting a Friday. Friday's are better for him.  June 28th is agreed upon. Case is set at zero of 90 on that date.

Judge Ohta then does a bit of an overview, explaining procedure to Gargiulo.  The defense filed an opposition to the prosecution's stipulation. "I don't think you need to file a motion." (In opposition to the prosecution's stipulation.) "You can just stipulate. There's no need for you to file. ... The thing is, what you (aforementioned?) want from the prosecution .... what you want is ... to file a motion to compel."

Regarding this motion by the defendant, no action needs to be taken on his motion.  Gargiulo also filed a motion to receive copies of transcripts of two specific court dates. I get one, April 26h, but miss the other date.  Judge Ohta grants that motion.

That's it. Next court hearing is June 28th.  Lindner has provided a hard drive for the people to transfer all their discovery to date.

Gargiluo tells the court he has an ex parte issue between him and the stand by counsel.  Gargiulo states he has sent emails to Mr. Lindner to provide work product.

Judge Ohta tells Gargiulo that he has an investigator.

 Gargiulo responds that we have attempted many times and he hasn't turned anything over.

Charles Lindner addresses the court for the first time. He goes on the record with the court.  "I have received no communication from the defendant. ... My younger son, he's spoken to Abraham on the phone. ... He's not demanded anything. ... I think he's requesting a video that doesn't exist. ... I've received no email. ... No regular mail."

Judge Ohta states he needs to hear from his investigator, Mr. Filipiak.  "Just you're saying so, is not enough. ... If there's is something you need or want to have, your investigator (needs to?) contact Mr. Lindner."

And that's it for this hearing.

Michael Gargiulo Case: Pretrial Hearing 10