Michael Gargiulo Case: Pretrial Hearing 24

 Michael Thomas Gargiulo, in custody, date unknown

UPDATE 11/10 2:30 PM spelling, clarity
UPDATED 11/10/14 11:45 AM November 7, 2014

November 7, 2014
Michael Gargiulo relinquishes his pro per status and standby counsel Charles Lindner has been reinstated as attorney of record.

Next pretrial hearing is January 9th, 2015.

I'll have an update on the proceedings later tonight.

UPDATE 11/10/14 
November 7, 2014
There are three cases I'm following that have hearings this morning. Gargiulo, Brown and Woodward. I decide to cover Gargiulo since Brown's hearing is just a status conference and I haven't been to any Woodward hearings since the prelim.

I get to my regular parking lot around 8:10 AM.  I keep the car running for another five minutes to charge up my cell phone.  While I’m sitting there, Cameron Brown’s defense attorney, Aron Laub, parks his vehicle beside mine. After he exits his car, he paces a bit in the parking lot while on a phone call. When he does see me, he smiles and waves.  He then takes off for the courthouse will his rolling cart.  I leave a few minutes later.

I finally catch up to him at the corner of Temple and Broadway. Since I decided I’m going to cover Gargiulo today, I told him that I would miss his hearing. Laub tells me that an associate will be standing in for him since he is in trial in Dept. 102. I tell him that I’m also stopping by 102 first, to drop off a bakery gift for Judge Marcus and his staff.



The Ninth Floor
Up on the ninth floor, I see defense investigator Chris Nicely, already here in his usual spot. I stop to say hello and look around the floor to see who else is here. Cameron Brown’s wife Patty is here. I tell her I saw Mr. Laub earlier and what he communicated to me about his schedule. Laub also said that nothing would happen today in her husband's case, except setting a return date.

In the center of the hallway, I see Janet Levine (and I believe Kelly T. Currie) the lead defense attorney’s for Joshua Woodward. Not long afterwards, DDA’s Habib Balian and Marguerite Rizzo who are prosecuting the case, are deep in conversation with them.

I walk down to the other end of the hallway and wait outside Dept. 102 until the bailiff opens the door. I hand my box to the bailiff and head back to the other end of the hall. Walking back, I see defendant Joshua Woodward sitting on a bench in-between two suited gentlemen, obviously attorneys.  I try to catch his eye but he’s totally engrossed in his cell phone.  I pass DDA Balian and DDA Rizzo again. I really wanted to stop and congratulate Ms. Rizzo on another fantastic Forensic Science Conference back on September 11, but she and Balian were still engaged with Woodward's counsel.

At Dept. 108, DDA's Daniel Akemon and Garrett Dameron arrive. They greet me and Nicely.  Just as we are entering the courtroom, DDA Craig Hum is beside the door to Dept. 107. He asks me if I've seen Mr. Laub.  I tell him he's in trial in Dept. 102.  Hum replies, "He's not there." Unfortunately, I don't have any additional information on Mr. Laub's whereabouts.

As far as attending Brown's hearing, the DA's calendar indicated that Dept. 107 would have a sentencing hearing, but I don't know if that would happen before or after Brown's hearing. I'm hoping that the sentencing would be first, Brown would be second and then I could attend the Brown hearing.  (The next hearing in the Cameron Brown case is November 24, 2014. Sprocket)

Inside Dept. 108
As I entered Dept. 108 behind DDA’s Akemon and Dameron, Judge Ohta slips by us and enters the well.  Judge Ohta looks sharp in a crisp white shirt and blue bow tie.


Defense attorney Charles Lindner is wheeled in by his son, (Abe?).  In the gallery, Lindner and Nicely chat for a moment.  I’m not sure if I hear correctly or who is being referenced, but I believe it’s Lindner who says, “They moved him in with four people.” 

Judge Ohta is at the bench. Lindner and Judge Ohta are have an engaging chat about “model citizens” and what that might be.

Judge Ohta directs his deputy to bring Gargiulo out. There is a bit of a wait while a Sargent Deputy arrives.

Lindner introduces his son to Judge Ohta. Lindner tells the court that his son [has], “...worked for me for eight years ... worked on several murder cases...” Lindner shares with the court where his son went to school and where he is thinking about attending law school. I believe Judge Ohta responds, “If you can get into Irvine, that would be great. ... That’s a good school.”  The discussion then moves onto what I often hear judges talk about with counsel in the well, recent appellate court rulings. Judge Ohta brings up the Sixth Circuit Court of Appeals  decision on gay marriage, and discusses the merits of the majority decision.

Two casually dressed young men enter Dept. 108 and sit in the third bench row. I don’t know if they are reporters, or interested parties to Judge Ohta’s current case, that may have already gone to the jury.  Judge Ohta and Lindner now discuss rulings by the Supreme Court. Another prosecutor enters the well and begins chatting with DDA's Akemon and Dameron.  A Latino family of four enters and sits in the back row.

Gargiulo Hearing
Gargiulo is brought out. He sits in the end chair at the defense table. He is still completely clean shaven and bald. Lindner greets his client by asking, “How are you this morning?”  Lindner and his son Abe switch positions so that Lindner can speak directly to Gargiulo.  Investigator Nicely moves up from the gallery to sit a chair along the low wall of the well.  More people arrive and sit in the gallery.

Gargiulo speaks to the bailiff. He hands him some papers that appear to be hand written. The bailiff hands them to the clerk.

Judge Ohta calls the Gargiulo case and indicates the parties present for the record. He adds, “Also Mr. Lindner, standby counsel.”


Gargiulo tells the court, “I just filed a motion ... relinquishing my pro per status ..." The court reads Gargiulo’s motion. It appears to be the lined pages of paper Gargiulo handed to the bailiff earlier.  After reviewing what Gargiulo filed, the court responds, “Before I [discuss?] ruling on this request ... Are you making your [request?] ... contingent on your being able to keep your books and discovery? ... And for [defense? defendant?] to be able to keep discovery and legal books?”

The court asks again if relinquishing his pro per status is contingent upon those other requests.  Gargiulo responds, “No, it’s not. ... I’m relinquishing my status.  But it’s an updated ....” I miss getting the rest of Gargiulo’s explanation.

Judge Ohta responds, “But let's separate these two things. ... You’ve been pro per, and you understand what it is to be pro per. ... you made ..." I believe Gargiulo interrupts the court and states that at the time he chose the pro per route, it wasn’t made clear to him that he could lose privileges.  He goes on to state that, “Because the court has hampered my ability to represent myself. ... The Sheriff’s violated [my rights]....”

Gargiulo mentions a few other things that he feels have been a violation of his rights.  Judge Ohta interrupts him and states, “We’re not going to get into that [again?]. ... I’ve gone over it several times.”



Lindner asks the court if he may speak to Gargiulo.  It’s my interpretation that Lindner explains to Gargiulo in simple terms what his choices are. 

The court continues, “If you feel, Mr. Gargiulo that there’s some [?] ... a violation has occurred that’s impeded your right to self represent in this case ... [it] makes sense to me for you to file a motion. ... I’m not going to sit back and let you just accuse me [the court]...”  Judge Ohta tells him to communicate with the Sheriff’s and file a motion.

Gargiulo replies, “I’ve tried that a few times and there’s no going back and forth. ... I’m fighting for my life. ... I have no access [to legal research/law library]....”

Judge Ohta responds, “If that’s true .... you filed this motion [at the last court hearing]...” Judge Ohta is referencing the 60+ page typed document Gargiulo filed.

Gargiulo replies, “That was written six months ago.”  Judge Ohta has an interesting look on his face and tone in his voice when he asks, “So you held back for six months and delayed this for six months?”  Gargiulo quickly replies, “But that’s because I was working on my 995 motion.”



(I may be wrong, but I thought at the last hearing Gargiulo said he was working on the motion he filed 11/7, and then he told the court he was going to work on the 995 motion. Sprocket.)

Lindner speaks to the prior issues of the court ruling regarding the pro per status and prior Faretta motion.

Judge Ohta, explains again to Gargiulo that, “It’s in your realm of domain as a pro per to litigate that.  If you think [there's been a violation of your rights]...” Gargiulo insists that he has no access to do something, to do the research to file that type of motion. Judge Ohta replies, “You acknowledge you have the right to put forward a complaint ... but you are putting that aside?”

Judge Ohta states for the record that Gargiulo would like to relinquish his pro per status. Gargiulo’s request is granted. Lindner is reassigned as Gargiulo’s attorney.

Lindner addresses the court and talks about discovery since he was removed from the case. “Apparently the amount of discovery ... is five-fold ... since [I was] relieved two and a half years ago.  ... 30,000 pages. ... It’s going to take me time to re-prepare.”

The court asks the prosecution if they have been updating Mr. Lindner as to discovery. DDA Akemon responds, “I have your honor. A hard drive of 29,000+ pages, ... except for about 20 to 30 pages.”

 Lindner tells the court, “I was told by the DA, ...[I] needed to purchase a two-terabyte hard drive.”

Counsel and the court then discuss what a terabyte is, since DDA Akemon adds, “Not sure what a terabyte is.” Someone adds that a terabyte is one-thousand gigabytes.

There is then a discussion as to whether it makes sense to come back in December or to come back next year.   Lindner’s phone goes off and he apologizes to the court.

The second week of January 2015, specifically January 9th is selected.  Gargiulo, Lindner and the prosecution team agree to the date.  The court informs Lindner that the case is working under a general time waiver. But that can be changed if so needed. 

Lindner tells the court that at a prior court hearing, Gargiulo got his foot caught in an elevator and needs to see a podiatrist.

The next issue that’s discussed is whether or not Gargiulo will for the time being, be able to keep his court materials.  Lindner is asking for a court minute order for Gargiulo, at least until January 9, be able to keep his trial documents. While Lindner gets up to speed on the case, it would make things easier if Gargiulo had access to his court documents.  The court replies, “I don’t see a need to take it away from him [at this point].” Judge Ohta asks the prosecution, “If you see a need that he not have it...”

 DDA Akemon and Lindner confer.  Nicely gets up to speak to Gargiulo. Afterwards, Lindner speaks to the court about the DA, but he mistakenly calls DDA Akemon, John Lewin. Someone jokingly says something about DDA Akemon and DDA Lewin looking alike, and it being a slip of the tongue. (They don’t look anything like to me. Sprocket.)  Judge Ohta responds, “We all have slips of the tongue.”

It's either Lindner or Gargiulo who states that Gargiulo currently has access to 14 boxes of books and papers. There’s more discussion as to whether or not Gargiulo, since he relinquished his pro per status, has a right to keep his papers until January 9. I believe the prosecution states they don’t believe he’s entitled to them.

 The issue isn’t really whether the DA agrees, it’s what the Sheriff’s will do, to ensure the safety of the jail. The Sheriff could just take his documents and books away from him. Lindner tells the court that, “I’d like to start over with Mr. Gargiulo.” 

DDA Akemon tells the court that he believes there are two issues. “Mr. Gargiulo is in possession of attorney work product. ... there needs to be [?] ... a need to protect that.” The court replies, “I can’t control [this] issue in the jail....”

Judge Ohta replies, “You can ask me to issue a temporary order.”  Judge Ohta asks his clerk to do that by “minute order.” The parties discuss how the minute order will be worded. Lindner asks that it state that all papers be preserved until January 9.

Gargiulo addresses the court. He mentions that the documents could be put on a hard drive that’s just plugged in, and then he would be able to access them. I’m not sure exactly what he’s talking about.  Judge Ohta rules, “For now, ... issue an [interim] order [that] your documents not be disturbed until January 9.”

And that’s it. Nothing on the case until next year.

When I exit Dept. 102, I peek into Dept. 107 to see if the sentencing hearing was still on. The courtroom is empty so I missed the sentencing and Brown's pretrial hearing.  I then stop by and peek into Dept. 103, where Woodward's pretrial hearing was held, and that courtroom is empty, too. 

I checked with the Superior Court's Public Information Office. Woodward's next court date is January 30, 2015.