Michael Gargiulo Case, Pretrial Hearing 25

Michael Thomas Gargiulo, in custody; date unknown

EXCLUSIVE T&T TRIAL COVERAGE HERE
Previous Pretrial Hearing 1/9/15

UPDATE 1/23: added links, clarity
UPDATE 1/22: spelling, clarity
January 9, 2015
The Ninth Floor
I'm here in the hallway on the 9th floor of the downtown Los Angeles Criminal Court Building. Looking down to the other end of the hall, I wave hello to defense private investigator Chris Nicely. Chris is wearing a long sleeved shirt and tie with a gray sweater vest that has a black and white check pattern.  Although some might say a sweater vest is casual, Nicely always looks professional when he comes to court.

Gawker
I briefly asked Nicely if he'd seen a Gawker story published late last year related to the Gargiulo case.

A little back story. On November 19, 2014 I noticed that T&T's traffic skyrocketed.  The increased traffic was hitting on a March 2014 Gargiulo post, and it was coming from a Gawker story by Leah Finnegan titled Remember When Ashton Kutchner Mistook Slain Girlfriend's Blood For Wine?  Fiinnegan, formerly of the New York Times, had embedded a link to my March post in her story. I was concerned when I read the Gawker article. In the very last paragraph, Finnegan wrote:

Michael Gargiulo was arrested in 2008 and has told police that he murdered as many as ten women.

I've covered this case extensively for two and a half years. I take the time to come to court, listen to the pretrial hearings, take notes and write what happened. I've read hundreds of pages of court documents and transcripts. In all the reporting I've done, I've never read or heard of Gargiulo making a confession to law enforcement.

After I read the Gawker piece I tried to find an email address for Ms. Finnegan at Gawker. Gawker doesn't put the email address of their reporters on their articles or even their contact page. So I left the following comment on the article.

Comment left on Gawker article 11/19/14

Not long afterwards, Gawker changed the text of the sentence and removed the link to T&T. They did it quietly. They did not make any notice to their readers that they changed a significant bit of information in Finnegan's story. A sense of deja vu came over me. The sentence in the Gawker article now reads:

Police believe he could be responsible for the slayings of up to ten women.

To clear up any confusion, here is what Gargiulo actually said.

Gargiulo Arrest & the Perkin's Operation
Gargiulo was arrested by the Santa Monica Police Dept. on June 6, 2008. He was charged with burglary and the attempted murder of Michelle Murphy. Represented by counsel, he was arraigned, and, according to Gargiulo's statements in the Perkin's Operation, placed in the High Power section of LA County Men's Central Jail. Ten days later on June 16, 2008, Gargiulo was taken out of County custody and transferred to El Monte, California. He was taken to either the El Monte Courthouse first, or the El Monte Jail, which is right across the street. On June 17, he was placed in a cell with two other men. These two men led Gargiulo to believe they had been arrested and charged with crimes.

In reality, the two men, who spent around 30 hours in a cell with Gargiulo, were LA County Sheriff Detectives Michael Staley and Dana Duncan with the Major Crimes, Metro Unit. They were conducting what is now called the Perkin's Operation. The entire time Gargiulo was in this particular El Monte Jail cell he was tape recorded. Periodically, he was taken out of the cell to an interview room where detectives from other police agencies, LAPD, LA County Sheriffs and Downey, spoke to him about other murders they believe he committed in their jurisdictions. In those interviews, various detectives told Gargiulo about, or showed him photographic evidence they had against him in these other uncharged cases.

During the time Gargiulo was in the cell, he talked with his fellow cellmates about the attempted murder and robbery charges he was facing in Santa Monica, as well as the additional murders the other law enforcement agencies were telling Gargiulo they believed he committed. There's quite a bit that Gargiulo talked about during this 30 hour time span. However, throughout the entire operation, Gargiulo never admitted to killing anyone. He denied killing anyone every single time his cellmates asked if he did commit any of the murders.

From the Perkin's Operation transcript, I've listed excerpts of statements Gargiulo made where he mentions a number of victims. In the transcript, "***" designates a word or words that were undecipherable by the transcribers.

 Pages 26-27: 

Gargiulo: All I know is that there was a homicide and my DNA hasn't been nowhere where I shouldn't be. So, if anythings happened to somebody, it's because I knew them or I've been there. So... 
Staley: Well, they have DNA shit on--
Gargiulo: No, I'm just saying that -- that's just me. There's -- there's no place I shouldn't be where it, you know -- 
Staley: Oh, so, you-- yeah.
Gargiulo: So if my DNA is there, it's because I knew the person and, uh, it was an acquaintance --
Gargiulo: --or something. 
Staley: Right. I don't know. That DNA is -- that's what got me fucking rammed with that shit. I had to, uhm, -- I guess they got it--
Gargiulo: DNA just places you there. It doesn't mean you did it.

 Page 216: 

Gargiulo: They're just trying to see a pattern--  

Gargiulo: -- With my DNA there and the people died.
Duncan: Yeah.
Gargiulo: Out of eight of them that died ***-- my DNA was there, 'cause I knew the person.  But, they --they link that. You know, his DNA's here. His DNA's there. The people died. That doesn't mean shit though, dude.

Page 251: 

Gargiulo: Every little case, they come to my ass. 
Staley: Well, sooner or later, they're going to build up enough little fucking things that it's gonna be -- they're gonna make it look like a big time, mmnh. I don't know. They, -- you know --
Gargiulo: And they really don't -- they don't have a lot of cases. There's only a few.

Pages 385-386:

Det. Staley: If you make a run at this, though, man, you gotta be careful, 'cause, obviously, if they catch ya, it's gonna work fucking bad for all your shit. You know what I'm saying?
Gargiulo: Man, they have me for seven already man.
Det. Staley: Seven?
Gargiulo: I don't even know man.
Det. Staley: And--
Gargiulo: I don't even know them.
[...]
Det. Staley: Ah, -- fuck man, if you have seven, that's a lot.
Gargiulo: Well, however many so far, ***. You know what, man? I'm like, *** them fucking people. 

Page 392:

Det.Staley: They've got seven fucking people.
Gargiulo: Nah.

Page 393: 

Det. Staley: --It's gonna look -- It's gonna look like shit on your cases. They're uh--
Gargiulo: Are you willing to face five murder cases dude?
Det. Staley: Oh, fuck no. Fuck-- no, you know. 

Page 400:

Gargiulo: They're charging me for every one. 
Det. Duncan: And what's that? How many?
Gargiulo: I don't know. Like five of them. People I don't even know.

Pages 455-456:

Gargiulo: All they're saying is they're all stabbing deals. And *** and there's a witness that seen me. That's impossible, dude. Unless they set it up to have witnesses, it's impossible. What's the likelihood of someone seeing the same person come out the -- the seven -- uh, five different places? You just see him?
Det. Duncan: So they're saying-- Look--
Gargiulo: And especially if the person's wearing a mask.

Page 510:

Det. Duncan: It's better than worrying about seven or eight cases right? Six or seven or whatever?
Gargiulo: There's only four.
Det. Duncan: Oh, is that right?
Gargiulo: Santa Monica, El Monte, Hollywood and Downey.

End of excerpts from the Perkin's Operation transcript.

Alleged Gargiulo Confession
After the CBS 48 Hours episode aired in 2011, two witnesses came forward. They worked with Gargiulo at a nightclub in the late 1990's. These witnesses were flown to Illinois. They testified before a Chicago grand jury that Gargiulo told them he killed a woman back in Chicago. With that new evidence, Cook County authorities charged Gargiulo with Tricia Pacaccio's 1993 murder. At the 37 minute marker of the CBS 48 Hours online episode, Detective Mark Lillenfield makes the following statement.

We’ve got some evidence, some statements, um, from Mr. Gargiulo, and from other people, that indicate, that ten might be, ten might be the magic number.

The Ninth Floor
A few minutes after Chris Nicely, Christine Pelisek arrives. Christine, who used to write for The Daily Beast, tells me she is now with People Magazine. I give her a short update on what happened at the last hearing.

8:44 AM
Detective Mark Lillienfeld quietly arrives and sits a few benches down.

9:07 AM
Defense attorney Charles Lindner arrives. Usually his son is with him to push the wheelchair, but today he's on his own. He heads down to the men's restroom at the other end of the hall.

Inside Dept. 108, Christian Filipiak arrives with his shirt collar open and no tie. I comment on his disheveled appearance. Usually Filipiak is impeccability dressed and not a hair out of place. Filipak tells me that he has been in court all week working on the Johnson Clemmens case, one of his other cases that's also in Dept. 108. The Clemmens case is a complicated cold case with tons of witnesses and over a hundred thousand pages of discovery.

Lindner is over at the clerk's desk raiding the Red Vines container and chatting with the bailiff. The bailiff is different that Judge Ohta's regular bailiff. Lindner is informing the bailiff of the incident with the piece of metal that was found in Gargiulo's mouth last April. Christine goes over to ask Lindner some questions. Glancing over at the inner courtroom doors, I note that the defense investigators and DDA Akemon are chatting in the ante chamber.

9:15 AM
DDA Akemon, Detective Lillienfeld and the defense investigators enter Dept. 108. Lindner chats with Akemon a bit about a prior case in his career.  Not long afterwards, Judge Ohta takes the bench. I believe Judge Ohta asks Lindner where his son is, who usually accompanies Lindner to court. Lindner tells the court that his son couldn't find handicapped parking, so he is still parking the car. Before they go on the record, Lindner informs the court that Gargiulo is talking about not waiving any more time. Lindner also mentions that he needs to draft a motion for second counsel.

While this is going on in the well, I turn around in my second row seat and and chat a bit with Nicely and Filipiak who are directly behind me. These investigators are usually juggling 20 to 30 cases at a time. Although it sounds like quite a lot to me, it doesn't mean they are working on all their cases every day. The work is usually spread out over months.

Gargiulo is brought out. He looks much the same as before, totally shaven/bald. He's wearing the black horn rimmed glasses. The court goes on the record.

Gargiulo's general time waiver is mentioned. Right from the beginning, the next hearing date Friday, March 20, 2015, is selected. The case will be put over to that date. Lindner informs the court of the issues he's facing and getting back up to speed. Lindner also mentions 87.9 matters that he has to take up with Judge Gordon.

Lindner tells the court that at some point he will ask, or file a motion to preclude the 1101b evidence and sever out the Ashley Ellerin charge from Murphy and Bruno. Lindner states he also has to go through the 12 search warrants.

Judge Ohta informs Lindner that previously, the prosecution had requested discovery from the defense (while Gargiulo was pro per). Lindner informs the court that when he left the case, there were 7,000 pages of discovery. Now the case is at about 28,000 discovery pages.  Lindner still has go through all that additional discovery.

Judge Ohta states, "We are taking a step back."

The prosecution confirms that they did serve the defendant with several 1054.2 general discovery requests. Lindner asks for copies of those. DDA Akemon replies that he filed a 190.3 notice about a year ago and that he will make sure that Mr. Lindner gets a copy.  DDA Akemon informs the court that there are a couple house-keeping issues. First, Mr. Lindner has signed for 29,103 pages of discovery.  Second, Gargiulo has 10 boxes of material in his cell. Detective Lillienfeld is here to take possession of those boxes.

Lindner responds, "I know that my client wants very much to keep his [court?] materials. ... I know the law is against him [in] keeping [these materials]. ... In any event, I have received [confirmation?] from the Sheriff's his cell is full of paper. ... I'm asking, ... because my client needs it to prepare for trial ... and the Sheriff's position is a legitimate one, ... [I'm] asking that he [Gargiulo] be able to keep [his documents?]."

Someone adds, "... but I don't have a dog in this fight."

I'm not sure if it's Gargiulo of Lindner who tells the court that there are other defendants who have "100,000 pages in their cells."

Judge Ohta talks about the issues the Sheriff's Department faces in maintaining a safe facility, even with defendants who are pro per. The court is not sure where to stand on this issue. I believe it's the Sheriff's Department that has made a request through the DA, to reduce the the amount of documents in Gargiulo's cell.  Judge Ohta states, "The Sheriff could talk through you, ... what needs to be reduced and then that is presented to me." I believe the court requests that Lindner go to see how much paper is in Gargiulo's cell.

This issue is discussed some more. The court indicates that it has another case that's similar (I believe he's referring to the Clemmens case), and that the Sheriff's are flexible to some degree.

Lindner then brings up to the court his own case that he argued all the way to the [California?] Supreme Court, something to do about having to remove his artificial leg while visiting a client in prison. In all the times I've seen Lindner at court, he has never worn his artificial leg. Lindner tells the court that because of that case, he knows what the Supreme Court allows for defendants to have in their cells.

I believe at this point, Gargiulo starts speaking, but I miss it. Judge Ohta replies, "Mr. Gargiulo, hold on."

There is a discussion about a date for Detective Lillienfeld and Lindner to go together to see what Gargiulo has in his cell. The first week of March is mentioned.  Gargiulo says something and Judge Ohta replies to Gargiulo, "I don't know what you have in your cell."

Now there is discussion about when Gargiulo first took over the case, and the documents that he was allowed to have in his cell.  Gargiulo then starts talking about discussions he's had with the Sheriff's at the jail, keeping his discovery on a computer. Gargiulo mentions his family purchasing a computer that would be kept in a lock box by the Sheriff's. The discovery would be kept on a thumb drive that could be used in the computer. Gargiulo would be taken to a room where he would have access to this computer for several hours at a time.

Gargiulo mentions a Captain Dempsey at the jail that he's been talking about this possible resolution to the problem.

Judge Ohta states that the issue with the Sheriff's is twofold. Contraband or materials that may impede or impact security. "Even if you had a laptop, it may still be contraband."

Gargiulo continues to ramble on and then he says something disparaging about Lindner that I miss but the court addresses Gargiulo firmly in response to the comment. "You are not free to disparage your attorney." Gargiulo appears to back peddle and tells the court that he was talking about attorneys in general terms.  The court tells Gargiulo to continue to speak with the Captain about potentially using a computer for his discovery.

March 20 is confirmed again as the next hearing date.

Lindner informs the court that the Sheriff's Deptartment is requiring him to submit new and fresh disability papers. I'm guessing this is something that he's asking Judge Ohta to sign. I believe Lindner is also asking the court to approve that Lindner have his paralegal with him when he visits Gargiulo at the jail.  Judge Ohta asks DDA Akemon if he has any objection to him signing. DDA Akemon has no objection. Judge Ohta will sign the order. I believe Lindner tells the court that he's only been able to see the defendant one or two times since he's been reassigned the case.  Lindner also asks the court for an order to send Gargiulo back to the doctor for [I believe] the injury to his foot.

And that's it. The paper in the cell issue hasn't been resolved, but may be resolved by the next hearing.

Off the record, there was some discussion between defense investigators and counsel that that they are facing the same issue with the Clemmens case, also in Dept. 108. The defendant in that case is also trying to have a computer in a lock box and a thumb drive with all the discovery on the thumb drive, or it's a situation that he has it already.  It appears that the parties are going to see what happens with the Clemmens case to guide what happens with Gargiulo's case.

As I'm walking to the elevator with DDA Akemon, I casually ask him what other cases are on his calendar and he tells me about a 1997 cold case, Rafael Martinez Jr., that will be going to trial in Van Nuys at the end of January.

Next Gargiulo hearing March 20, 2015.