Michael Gargiulo Case: Pretrial Hearing 17A

 Michael Thomas Gargiulo, in custody

UPDATE 5/18: edited for clarity, spelling

May 9th, 2014
8:05 AM
I’m on the 9th floor of the downtown Los Angeles Criminal Justice Center, sitting at the end of the left wing. It’s virtually empty in the hallway this early.

Backstory: Gargiulo's Last Pretrial Hearing
The last time I attended a court hearing was on April 17th at the Airport Courthouse. I have notes I still have to write up about the case of Dawn DaLuise, who is charged with attempted murder for hire.

After that hearing, I got home around noon and realized I had food poisoning. After 12 hours of pain, it left me flat on my back and out of sorts for almost five days, which is why I missed Gargiulo's last hearing on April 18th.

At Gargiulo's previous hearing on March 7th, stand-in defense attorney, Charles Lindner was ordered by Judge Ohta to appear on April 18th. My understanding is, Lindner did appear on the 18th. At that time, Judge Ohta still had not reviewed Gargiulo's subpoena's in camera.

May 9th, 2014
8:06 AM
A few minutes after I arrived, Gargiulo's defense investigator Chris Nicely arrived.  He’s wearing a nice dark suit jacket and slightly lighter gray pants. Most other times I’ve seen him, he’s worn sweater vests. It’s been a hot spring for Los Angeles so far this year, so I’m not surprised that Nicely switched to wearing a jacket.

8:19 AM
Down in the center of the hallway I see defense counsel for the Joshua Woodward case. Megan Wisegerber,  Kelly T. Currie are standing. It’s a guess that Janet Levine is sitting. I keep leaning forward to try to see if it’s her, but since she's on the same side of the hallway that I'm on, I can't tell from where I'm sitting.

The hallway is filling up with people at the other end.  It is Ms. Levine who was on the bench. She got up and I was able to see her face. They are waiting for Dept. 103 to open. I’ll miss that hearing this morning.  After Gargiulo, I’ll have to find out when the next pretrial hearing is for that case.  (Readers, you can always check the listing of 'Upcoming Pretrial Hearings' in the right column for cases you are interested in. Sprocket)

Nicely is sitting to my left. I glance over and see that he is reading some hand-written pages on lined paper. Looking back down the hallway, I can’t see as far as I used to. I’ll have to get my prescription updated.

One news event that I’ve been obsessed with the past two months has been the disappearance of flight MH370.

8:26 AM
The activity in the hallway has quieted down a bit.  I keep glancing left to see if the prosecutors from the Woodward case (DDA Marguritte Rizzo and DDA Habib Balian) have arrived yet. Woodward’s defense attorney’s are still in the hallway.

8:31 AM
I see one of the Woodward prosecutors, DDA Marguriette Rizzo walk this way.  She’s wearing that cream trench jacket with the big buttons down the back that I really like. She gives me a smile and heads into the ladies restroom.

Over at Department 107, Judge Lomeli steps out and unlocks his own courtroom door. Coffee cup in hand, he's wearing his standard suit vest.

8:39 AM
Down at the center of the hallway, I  see DDA Habib Balian has arrived. He's chatting with Woodward’s defense team. Then everyone steps into Dept. 103.

8:48 AM
LA County Sheriff's Detective Mark Lillienfeld arrives. He smiles and says hello. He then greets a man at the end of the hallway and they chat.

8:49 AM
Chris Nicely gets up and enters Dept. 108.

I unplug my computer from the wall outlet and close up my laptop. I follow him inside a few moments later.

8:50 AM
After I take a seat in the second bench row, investigator Christian Filipiak arrives. We exchange greetings and then he goes over to chat with Chris Nicely. Then the both step outside the courtroom.  Getting back into taking hand notes after I've been away for so long is hard.

I note that there is another deputy with Judge Ohta's bailiff at the bailiff's glassed in area. They both appear to be deeply focused on their cell phones. Judge Ohta's clerk comes out of the back area. She sees me, smiles and says hello.

8:55 AM
Detective Lillienfeld enters and takes a seat in the well.

A handsome bald man comes out from the back area carrying two soft sachels. It suddenly dawns on me that this is Judge Larry Fidler, who presided over the Phil Spector trial.  It's a good guess that he used the private elevator on Judge Ohta's side of the building. To me, Judge Fidler doesn't appear to be as tall as what I remembered when I sat in his courtroom through two trials.

Detective Lillienfeld heads out to the hallway. The clerk hands a package of juror notebooks to the bailiff. Wondering if Judge Ohta is in trial at the moment, I stand up to see if there are notebooks on the seats in the jury box. No notebooks on the seats.

9:05 AM
Another deputy arrives telling the other two about an event this Sunday.  Moments later, DDA Akemon arrives.  Detective Lillienfeld is back and Akemon compliments Lillienfeld on the deep green color of his suit.  I agree. It is a nice suit.

DDA Akemon and DDA Garrett Dameron leave the courtroom to have a private chat in the ante chamber.

9:08 AM
The pretty, black female deputy arrives. She has three stripes on her shoulder, but I don't know what rank that represents.  The four deputies are discussing a report about Gargiulo. Something happened on the way back to Men's Central Jail at his last hearing on April 18th.   I overhear one of the deputies say the DA wants to increase security involving Gargiulo.  They mention Gargiulo's pro per status.  Now the bailiff from Dept. 107 comes in and they share their information with him. Another statement I overhear is, "... apparently he's a trained boxer ... he has an issue."  Another says, "... so far ... he's pretty cooperative."  I hear them mention an escape attempt. The female deputy is reading a document and another deputy tells her about the El Monte jail incident. Another deputy with two stripes arrives.  I overhear statements that sound like, 'DA wants to increase security because of what happened when he came back from court ... and the handcuffs."  During this conversation about Gargiulo, I observed one of the deputies touch his fingers to his lips in describing the event.

9:16 AM
Judge Ohta's pretty court reporter comes out and sets up her equipment.

9:19 AM
DDA Akemon and Gargiulo's investigator chat at the defense table. Akemon places papers on the defense table and they appear to discuss them. There are three stacks of papers. One stack is over an inch thick.

I believe Akemon tells the investigator he laid out a timetable at the last hearing of a potential trial date of April 2015. There's one document that Filipiak asks Akemon if Gargiulo is entitled to have a copy of. I hear Akemon reply that he doesn't know but he'll find out.

DDA Akemon and Detective Lillienfeld leave the courtroom. I believe they left to make copies.

9:25 AM
Gargiulo is brought out. There are four deputies in the well, watching him. I have to move a little farther down on the bench row to get a clear view of Gargiulo.

Gargiulo chats with his investigators. Judge Ohta comes out in his robes. He sets papers and files on his bench and starts to go over some of the files.  Judge Ohta works on a file at the bench.  Gargiulo is still going over the papers at the defense table with his investigators.

9:30 AM
DDA Akemon returns and Judge Ohta goes on the record with People v. Gargiulo. The defendant is before the court, representing himself. He asks the investigators and the prosecutors to state their appearances for the record.  Judge Ohta tells the parties, "There are several things to take up today. ... One relates to (discovery?) [The SDT's] and one relates to pro per privileges. ... [We'll] take pro per status first. ... I received a document, filed on May 1. Before this document (was?) filed with the court ... (the) Sheriff's department faxed to the court notice that a Wilson hearing had taken place on (April 25th?)"

Based on the notice the court received and the documentation filed by the Sheriff's, it would appear that the Sheriff's Department proceeded with a Wilson hearing. The defendant was in violation and his pro per jail privileges were taken away.

Judge Ohta continues, "Before I go further, the allegation of jail (weapon? contraband?) is a crime. ... You have a right against self incrimination." Judge Ohta continues informing Gargiulo of all his rights with this allegation.  "You have a right to have the court review what happened. ... and (the?) basis of the sheriff's action against you. ... I don't know if a case will be filed against you regarding the 'shank' ..."

Judge Ohta then proceeds to read into the record the local rule 8.42, that requires certain things be done and note for the record what has been done so far.

Judge Ohta goes over what the documents he's read, appear to indicate what happened.

Gargiulo appeared in court on April 18, 2014. Apparently, on the way back to jail, Gargiulo was searched. Deputy (Pace?) found a metal object hidden in your mouth. On April 21, a (discovery?) hearing was conducted and you were found guilty."

Gargiulo was disciplined and put in "the hole."(I believe Gargiulo was put there for 10 days. Sprocket)

Judge Ohta continues, "Then you were given a Wilson hearing on April 25. The hearing officer found you were in violation of two sections of the pro per rules."

The first violation was possession of a metal object (or "shank" or "key").
The second violation is a duty not to infringe on the rights of other pro per status inmates.

Consequently, a notice to the court was faxed on April 28 of the action taken. The court filing was on May 1.

Judge Ohta goes over local rule 8.2. The court explains that the local rule is not legislative mandated. It sets forth certain procedural rights that need to be followed.  I believe Judge Ohta is reading a section of the local rule into the record.

1. Notice must be given to you (defendant) 24 hours in advance of a hearing.
2. You have a right to appeal within 48 hours.
3. You may call witnesses.
4. You must be given a copy of the evidence relied upon.

There are certain timing requirements, and this is after receiving notice.
There is a review of the sheriff's decision and then a calendar hearing scheduled to present evidence.

Judge Ohta tells the defendant, "That is what we're doing right now."

Gargiulo replies, "I'd like to speak on the record. The jail failed to follow all the rules. ... I can't prepare because (my?) privileges were violated. ... I filed an appeal and they failed to follow rules and reply in three days. ... There are so many rules they violated by taking me to segregation immediately."

Judge Ohta asks the defendant, "Are you saying that what's in this document is false?"

I miss Gargiulo's reply. Judge Ohta states, "What you're saying is, the notice given to you ... they failed to follow procedures (before?) the Wilson hearing?"

Gargiulo argues that they did not follow proper procedure. "They denied me the right to prepare. ... They did not give me documents until one day before the Wilson hearing. ... I filed a ton of complaints ... that have not been responded to."

Judge Ohta asks, "You're telling me you're not prepared?"  Gargiulo responds, "I have no privileges."

Judge Ohta explains to Gargiulo, "The way California court explains this is done, varies from county to county.  ... Once pro per status given ... the evidence hearing does not have to happen here. It can happen at the jail. ... Only at the point of court review of what happened and the court then determines modifying your privileges. ... What you say happened before ... may not have anything to do with the Wilson hearing. ... The Wilson hearing is separate. ... The memorandum on pro per privileges could be modified. ... They've already been modified by the sheriff's."

Judge Ohta asks Gargiulo what date does he want to return. "You're not going to get your pro per privileges ... You have no law library privileges, but you're entitled to have a hearing. ... You're entitled to present your (position? evidence?)"

I believe it's at this point that Gargiulo tells the court that he doesn't understand how there are two violations. He doesn't understand the second violation.

Judge Ohta patiently explains to Gargiulo, "The sheriff's position is this. If an inmate has a shank, who knows where that shank may travel. ... (It could be) taken to the law library. Other inmates are in jeopardy. ... Their rights are infringed upon."

Gargiulo responds, "That would be based on speculation..."  The court replies, "You could call it that if you like."  Gargiulo asks, "Where would I get the discovery? ... The DA's office?"  Judge Ohta replies, "Not the DA's office. It's the County Sheriff. ... If you're going to allege all things against the (sheriff?) ... I think we can do this in a week. ... The DA's office may not appear. ... You [the DA] can if you like."

A week from today, Judge Ohta will schedule a review of the Wilson hearing on May 16th.  Judge Ohta orders the counsel for the Sheriff's Office to be here on that date.

Judge Ohta then moves onto the other issue. He's gone in camera to review Gargiulo's SDT's (subpoena duces tecum). The DA asked the court to keep certain concerns in mind. I miss what Judge Ohta gives as the first concern, but it's probably personal witness information. The second concern is any material from members of the prosecution team; LA County Sheriff's, El Monte PD.  Judge Ohta looked at envelopes from AOL, Match.com, Monterey Police Dept., LA Co. Sheriff's Dept. He did not find anything from (Mark Monitor?).

The material from AOL and Match.com, nothing that triggered any of the DA's concerns. The defense investigator will be given the material, make copies and return one to the court.

LA County Sheriff's: Sent out five SDT's. Sheriff's department launched a letter from (their? counsel?) citing 1054. "This is discovery and you need to ask prosecution."

Monterey Police Dept. There was a tape given to the court. This is ostensibly ... one of the issues of DA Akemon ... but not for Monterey Park. The defense will be given the tape and make a copy and return to the court.

Judge Ohta concludes, "And that's everything with respect to the defense SDT's. ... I believe the DA filed a request for discovery from the defense. ... We talked about setting parameters ... a time frame. ... Right now, the pro per privileges are suspended at the end of the Wilson hearing.  ... If I go along with the Sheriff's Dept., and the defense is restricted, you have to make a decision if you want to continue to (represent yourself)."

Gargiulo asks about his phone privileges.  Judge Ohta responds that the court is not required to go along with every single one of the restrictions. ... I don't know if having a shank is necessarily ... You have a right to have a hearing. ... County counsel will be here." Gargiulo asks the court, "Are you expecting a motion?"

Judge Ohta replies, "I don't expect (a motion?).  You dont' have privileges. ... Anything connected to your ability to pro per (privileges), phone, pencils, paper ... is all a privilege."

I'm not sure if Gargiulo asked another question at this point or not.

Judge Ohta continues, "I don't see it (impending?) ... Depending, ... (you?) can possibly have phone privileges back. ... Jail security is (primary?) with the sheriff. They have complete power. Not me."

This review hearing will be next Friday.

Akemon then tells the court that he has turned over to Gargiulo another set of discovery.  I miss the first page number, but the last page number was 27,060.  Gargiulo has in his cell with him, 27,060 pages of discovery from the prosecution.

There's something mentioned about DNA results from SERI that was put on a CD and given to Gargiulo's investigators.

Based on the allegations by the LA County Sheriff's, the prosecution filed with the court a memorandum of manifest need to provide increased courtroom security.  (It's my understanding that the DA's move here is to protect the public. They need to have their position on the record. Sprocket)

Judge Ohta gives his thoughts on this issue. "...finding of manifest need ... pertains to (?) and fact finder (jury). ... We don't need to worry about this until time of trial ... and doesn't impede on Mr. Gargiulo's rights."

I have this exchange in my notes, but unfortunately, I'm not sure who says what. It's possible the court asked the question and Gargiulo responded, or it could be the reverse.

Do you have anything for me?
There's a lot on my plate.

Garguilo then tells the court, "I do have a (question?). I did file a motion with the court regarding defense turning over discovery, stating I didn't have any discovery at this time. Still trying to locate witnesses and interview witnesses."

I believe the court tells the parties, "See you back on Friday, May 16."

A general time waver is then brought up (I believe) by the prosecution. I believe the court explains to the defendant the general time waiver under the penal code and the right to a speedy trial.  A general time waiver means the defendant doesn't have to do the zero of 30.  Judge Ohta asks, "Do you want to keep putting it over?"  Gargiulo agrees to the general time waiver.  However under 1382.a paragraph 2 sub a, if at any time Gargiulo rescinds the general time waiver, he now falls under the requirements of a trial in 60 days.

Judge Ohta asks Gargiulo, "Do you have any questions about what I just read?" "No, your honor," Gargiulo replies. It's on the record. Gargiulo has entered into a general time waiver.

I believe DDA Akemon tells the court that the document, Notice of Results of the LA Sheriff's Dept. hearing, he gave a copy of it to Gargiulo.

And that's it for the May 9th hearing.

It's my understanding that what was found in Gargiulo's mouth during the search on April 18th was the metal clip attached to a ball point pen. My understanding is, the sheriff's report called the piece of metal a "shank" and/or a "handcuff key."