Friday, March 14, 2014

Michael Gargiulo Case: Pretrial Hearing 17

Michael Thomas Gargiulo, in custody. Date unknown.


March 14, 2014
7:25 AM
I’m on the Red Line train heading into downtown Los Angeles for a pretrial hearing in the Michael Gargiulo case. Mr. Sprocket dropped me off this morning on his way to check on a parts order. Today’s hearing is a continuation of the issue of Gargiulo’s SDT’s (subpoena duces tecum) that he issued to various entities, and whether or not he has a legal right to the information he’s subpoenaed. When one side issues a subpoena for documents, those documents are sent to the court. In the presence of the court, the other side either agrees or disagrees that the opposing side has a right to the documents requested.

As many of you already know, Michael Gargiulo is an alleged serial killer, facing the death penalty. His status is currently “pro per.” In California this means he is representing himself. 

Some T&T readers may be wondering how long is it going to take for Gargiulo’s case to get to trial. To partially answer that question, I recommending reading LA Weekly’s Christine Pelisek’s latest story on Lonnie Franklin, Jr., the alleged “Grim Sleeper” killer. Franklin, who was arrested in July 2010 is not pro-per, but he is another alleged serial killer who is facing the death penalty.

In the Franklin case, Pelisek reported that the defense hasn’t completed their testing of the state’s evidence yet. Franklin has two attorneys, and that case is taking quite some time to get to trial.  There is a hearing in the Franklin case this morning in Dept. 109. That's at the opposite end of the long hallway and it's not likely that I can cover that hearing and Gargiulo's hearing at the same time.

In the Gargiulo case, because he decided to go pro-per, the discovery process starts from scratch. As of last week, the state still has one piece of discovery, an expert report they are waiting on to turn over to the defense. The discovery process goes both ways in California. It’s my understanding that Gargiulo has yet to turn over a single piece of discovery to the prosecution.

8:10 AM
I'm on the 9th floor of the Clara Shortridge Foltz Criminal Justice Center. One of Gargiulo's investigators, Chris Nicely is already here.  I haven't seen Gargiulo's other investigator, Christian Filipiak for several hearings.

I will have an update after the hearing.

8:30 AM
DDA Daniel Akemon arrives on the 9th floor.  He stops to chat a bit with Instigator Nicely.  The floor is busy at this end with about two dozen casually dressed people.  I don't notice a single one wearing a juror badge.

After Nicely chats with Akemon, Nicely leans over and rubs a bit of shine into his leather shoes.  DDA Akemon waits down by the security station. A few minutes later, DDA Garrett Dameron arrives. Akemon and Dameron take a walk down to the other end of the hallway. I squint to try to see where they went. Akemon looks like he dropped in on Dept. 102 (his case against Javier Bolden is in Judge Marcus' court) and Dameron went into Dept. 109.

Back down at this end of the hallway, I say hello to Akemon and Dameron and follow them into Dept. 108. Akemon and I have a brief conversation about the missing Maylasian flight 370.

8:53 AM
A few moments later, Detective Mark Lillienfeld arrives. Investigator Nicely takes his seat at the defense table. Gargiulo is brought out. He looks much the same as last week.  Gargiulo still has the goatee (it appears to be getting a bit longer) and has the same jail pallor he's had for some time now.  Gargiulo and his investigator start to chat.

9:02 AM
The pretty DDA who was trying a case in Judge Ohta's courtroom arrives and greets Akemon and Dameron.  Investigator Nicely comes over to Akemon. It appears Gargiulo wants to tell him something or ask a question.   I try to listen in but I don't catch much. I believe I hear Gargiulo say the words "stamped ... no one will tell me."

Another reporter I met through a friend arrives. I motion for them to come sit up next to me so I can say hello.

9:05 AM
On the record in the Gargiulo matter. As expected, Judge Ohta starts off by summarizing what happened last week.  He mentions the SDT's and whether or not the defendant is to receive any of the documents he subpoenaed.

It appears the people filed another motion, documenting more of their concerns about Gargiulo's subpoenas. It was filed on March 11th.  Gargiulo hasn't received it yet.  There's a bit of a confusion for a moment. It's apparently in the Sheriff's custody. The bailiff has the document and it's given to Gargiulo.  Gargiulo starts to go over the document.

While he's looking that over, the clerk gets Judge Ohta's attention and whispers to him.  I think I hear Judge Ohta say, "It's fine." A few moments later, what looks like a 6" x 9" manilla envelope is handed to the bailiff who gives it to Gargiulo.

Gargiulo is reading the people's motion he's been handed. "Your honor, this is the first Iime I've seen it. I don't want to take too much of the courts time to go over it."  Judge Ohta replies, "Just focus on page 3, line 15. I think that gets to it."  Judge Ohta appears to be reading the same document at the bench.  Judge Ohta then addresses the people. "I do have some questions Mr. Akemon."   Apparently, the people's motion mention's "Marsy's Law." Judge Otha says something to the effect, "I can't raise that privilege ... I don't know how that can be done." He goes onto explain that the language is written in broad strokes and there is no way to get to specifics. He does at that Megan's Law protects victims. It does not protect witnesses.

DDA Akemon brings up his concerns about open investigations, and the defendant issuing subpoenas for people or LE agencies in those investigations.  Judge Ohta does mention that this is going to involve a lot of research on his part. He mentions that he's already done quite a bit of research on the issue of quashing subpoenas.  "There is a prodedure for quashing subpoenas. ... It's very specific as to how it's done.  ... You want to protect witnesses and protect any future investigations going on."

I believe it's DDA Akemon who replies that he "... understands where the impetus lies ..."  Judge Ohta continues, "The court provieds a remedy that ... individuals [who were subpoenaed] come forward to quash. ... There is a rule how a 3rd party can quash. ... And when 1054 does not apply [to discovery] the prosecution is not required to provide [documents]. ... The defendant must go outside 1054. The law (rec?) the defendant has a right to SDT's."

Someone comments (Akemon? Judge Ohta?) that we're in a murky area, what's inside the SDT documents.  I believe Judge Ohta asks about the Monterey Park subpoena. He asks DDA Akemon if they are involved in this case.  Akemon responds that they are not one of the investigating agencies in this case.  Akemon mentions the Santa Monica PD, the LAPD, the LA Co. Sheriff's, and Chicago, relating to the 1101b testimony.

As Judge Ohta is looking over the list of subpoenas, he mentions Mark Monitor. "What is Mark Monitor?" Gargiulo responds, "It's a social website."Gargiulo also offers that the subpoena to the LA County Sheriff's is to the medical division.  Judge Ohta comments, "So that could arguably be under 1054."  Judge Ohta also asks Gargiulo 'when' he issued his subpoenas.  Those issued before 1/1/14 would not fall under the new local rule. Three of the subpoenas were issued before that date, and one issued after.  "Which one did you do after?" Judge Ohta asks the defendant.  That one is to the LA Co. Sheriff's. That one will fall under the ammended local rule, the other three do not.

Judge Ohta then starts off by saying, "I'm not saying this is my ultimate ruling ... I have my viewpoint. ... Nothing in the local rule gives the prosecution the power to quash. ... only ruling is ... loss of pro per status. ... I'm not sure that local rule gives the prosecution the right to quash."  Judge Ohta then references a point in their motion.

Judge Ohta mentions that the LA Co. Sheriff's is about the county's medical personnel.  He cannot figure out the (applicability?) of Marsy's Law; it's too broad. He doesn't know where the line is. He mentions something in the law that states 'any material to harass.'  Judge Ohta muses, "If the defendant says, here is the reason I need it ... and here is why I need it at trial, then it falls outside..." He then continues, addressing the people. "You don't know what it is so you don't know how to make [your objections] it specific." Akemon responds, "I know that the La County jail has said they will not turn over policies [manuals]."  Judge Ohta then comments that he's had cases where defendant's did receive that or similar information.

Judge Ohta then rules. He addresses Gargiulo. "The easiest way to do this ... tell me why you need this and you can do that under seal."  Gargiulo tells the court that they can put the other subpoenas aside for a moment (the three issued before 1/1/14) but he needs the medication/LA Co. Sheriff's one. Gargiulo then mentions that he could write his motion.

Judge Ohta tells Gargiulo that he doesn't want to put anything aside. He then tells him, "You don't have to write a motion. You just need to tell me why. ... If it's something that might fall under one of these items [in the prosecution's motion] then they [people] can tell me to further articulate."  He then addresses the people on their motion. "I can't do 1040. I can't do that. I can do everything else."

Gargiulo tells the court that the protocol for medication policy, "They [people? jail personnel?} said it falls out of 1040." Gargiulo then mentions his concerns about taking up so much of the court's time.  Judge Ohta addresses that concern. "Don't you worry about it consuming my time."  Gargiulo replies, "I'm just tryng to get this as quickly as possible." Judge Ohta asks, "Have you SDT's those policy manuals?"  (I miss the answer.)

Judge Ohta states that this will be a two step process.  Gargiulo is to present in writing, why he needs what he's subpoenaed. Once he receives that, he will review it in camera on the record and the record will be sealed. "I will not immediately reveal to you [contents]. ... We'll come back to court, and [I'll?] tell the prosecution if any items trigger any of their (concerns?)."  Judge Ohta will then give the prosecution the opportunity to fine tune their objections.

Judge Ohta then tells the defendant that the prosecution also filed a request for discovery compliance by the defense. The defense has not filed any discovery with them under 1054.3.  Since the request has been made, Judge Ohta is asking the defense if they have any discovery.

Gargiulo tells the court, "We don't have anything yet. ... biggest struggle is to get a hold of witnesses."

Judge Ohta then mentions that he wants each side to develop a timeline of where the case is going.  Once that's done, then you [defendant?] file pretrial motions to contest anything.  Judge Ohta tells the parties, "It's a good idea to have an idea of an end date." He wants to set a time for return to court.

Gargiulo responds, "I think issue is being able to interview witnesses." He mentions something about an investigator going to Las Vegas and not being able to get a hold of anyone. Judge Ohta responds, "I'm not asking you to justify ... What I said is, lets set some time frames. ... If I agree with them we will begin to set marks on dates."

There is then discussion about when/how Gargiulo will get his document to the court explaining why he needs the information in his SDT's. He's told that he doesn't have to have a court date, he could mail in the document. Amazingly, Gargiulo then tells the court, "I do have those all finished. I just didn't bring them (today?)."  He then tells the court that he will give them to his investigator to give to the court.  Judge Ohta again tells Gargiulo that he will look over everything on the record and that the record will be sealed.  If it's necessary, he will alert the DA if there are issues.

April 18th is selected as the return date. On that date, they will set timelines and a schedule on that date. And that's it for the hearing.

10:45 AM
I'm down in the cafeteria getting a bite to eat before I write up my notes.  Lately, I've been staying down at court to finish my write up before I head home. After I get settled, I get a call from Mr. Sprocket. He tells me he only had a short window of time to pick me up from the train station, so I will need to head towards home as soon as possible.

One of his customers had an emergency and Mr. Sprocket was picking up parts to fix the problem right away.  Note to small business owners. When you decide to try to clean your refrigeration system condenser coil yourself (that cools your reach-in freezer), make sure you really know what you’re doing. You could potentially damage your coil beyond repair. The cost of a new coil will guaranteed be much more expensive than the money you thought you’d save by cleaning the coil yourself.


Anonymous said...

Thanks for your work in covering the hearings in this case.

David In TN