Michael Gargiulo Case - Marsden Hearing

Complete Michael Gargiulo Trial coverage can be found HERE:

Michael Gargiulo in custody, 2008

Note: This post is not fully edited yet. Sprocket

Brief Synopsis
Back on May 7, 2015, defense attorney Charles Lindner filed his 995 motion. Right after that, Gargiulo stated he wanted to have a Marsden hearing. Judge Ohta informed the defendant that he was in trial right now and could not do the hearing today. He set a date of May 13, for the parties to return.

May 13, 2015
I was in the hallway sitting verdict watch in the Cameron Brown trial. Judge Lomeli ruled that the courtroom was closed during deliberations. I wasn’t allowed in the courtroom.  For a short period, I entered Dept. 108 to see if I could possibly hear the beginnings of the Marsden motion. It’s not in my notes, but from memory, I believe Mr. Lindner was late.

10:28 AM
I step into Dept. 108. Mr. Lindner is recounting one of his many life stories that he likes to tell to DDA Dan Akemon. Private investigator Chris Nicely is sitting in the middle of the gallery, third row.

Lindner is now chatting with Judge Ohta. He brings up the name of an attorney who flunked the bar  by one question. Judge Ohta asks Lindner if this attorney would like this known [about him]. Judge Ohta asks DDA Akemon when he joined the DA’s office. DDA Akemon tells the court, “1999.” He then talks about members of his family that have entered the law profession.

We are waiting on Gargiulo. The case in trial is already set up. Lindner and DDA Akemon chat. The prosecution and defense in the current case are also having a discussion, so there are two conversations going on at once.

It doesn’t look like Gargiulo is going to be brought out, so I exit the courtroom to wait on the Brown verdict.

May 14, 2015
8:45 AM
Mr. Lindner is her with his son, Abe, his paralegal. We enter Dept. 108.  I believe Judge Ohta is at the bench. There is a new court reporter. Judge Ohta informs her that the next case is a capital case, and that it was continued from yesterday. Judge Ohta was previously out of his robe but now has it on.

It appears that the current trial, the jury is in deliberations. There is a new bailiff at the bailiffs' desk. My eye naturally floats over to the Red Vines tin at the clerks counter. It’s half full. I never noticed it before, but there is a small, black and white sketch hanging in the ante chamber. It’s court related. As I type today, I have a memory of Mr. Lindner pointing out the sketch to me and told me something about it, possibly that he has a copy.

There are two defense attorneys in the well and two more counsel arrive. Now a third attorney, but this one stops, looks in then leaves and then comes back.

Mr. Lindner was here on time (8:45) but DDA Akemon is late.

8:52 AM
DDA Akemon arrives. Gargiulo is brought out two minutes later. He’s wearing his glasses and his standard white, long sleeve under-shirt beneath the orange jumpsuit. There are two sheriff’s in the well.

Judge Ohta calls the case. They are on the record. The court asks the parties to state their appearances.

The court summarizes what has happened to date. “A couple of days ago, ... about a week ago, ... Mr. Gargiulo’s case .... for pretrial, ... he indicated he had a desire to make a Marsden Motion. ... He was brought back yesterday and continued today.”

The court asks Gargiulo how much time he will need. I believe the court asks if ten to fifteen minutes will suffice. The court asks the prosecution to leave, but I’m not asked to leave yet. The court asks the defendant, “Are you going to talk to me about confidential things?”  Gargiulo responds, “Well, not unless you ask me.”

I’m then asked to leave as well as other counsel in the well. Out in the hallway, I make a internal bed with myself as to how long this may take. I wonder how long will the court allow this to go on.

9:10 AM
We are back inside the courtroom. Gargiulo has already been taken back into custody. Judge Ohta tells DDA Akemon that the Marsden is not completed yet. Counsel for other cases being heard file back in. The return date is May 27th.

May 27, 2015
7:30 AM
I’m in the cafeteria of the downtown criminal court building. Usually, I wouldn’t be here this early but I’m going to help Mr. Sprocket on a job bid after court so he drove me. He decided to go to the Maurkai Market in downtown Little Tokyo to wait for my call that I’m all done today.

I’ve been sick every since the jury came back with a verdict in the Cameron Brown trial and I’m still not 100%. This junk in my lungs and sinuses doesn’t want to leave.

 There’s an interesting cast of characters in the cafeteria today. It’s one of those places to people watch. Attorneys greet each other, people read books or get breakfast. There is an defense attorney wearing a bright purple tie, that reminds me of the vibrant ties that former DDA Alan Jackson would wear.

There is one defense attorney who appears to be quite popular. Several people have stopped by his table. One visitor says, “Fancy meeting you here.”

 It’s mostly defense attorneys I see in the cafeteria, but once in a blue moon I do see a deputy district attorney.

It’s 8:00 am and I decide to head upstairs to the 9th floor. That’s when the 9th floor security station opens.

8:07 AM
When I clear security on 9, there is a cameraman with quite a bit of gear getting it all packed up. I ask him if he’s going to Dept. 101. He replies, “Yes.” I direct him down towards the right wing. I head in the opposite direction. There’s a hearing in the Suge Knight case in Judge Coen’s courtroom, as well as a hearing in the Tobias Summers / Daniel Martinez kidnapping case. I don’t know if it’s Summers or Martinez who has the hearing today. I’d love to attend those, but I did promise Mr. Sprocket I thought I would be done by 9:45 am at the latest.

8:14 AM
One of DDA Akemon’s clerks heads my way and asks if I’d seen him. No, I haven’t.

The right wing of the hallway is surprisingly empty, considering the amount of media that shows up for one of Knight’s hearings.  A second cameraman shows up and heads down towards Dept. 101.

DDA Shannon Presby is in trial in Dept. 108 in the Mary O’Callaghan assault trial. That will probably pick up at 9:30 or 10:00 am. It started last week. I would have loved to jumped back in and covered this case but I’m just not well enough. I shouldn’t even be here today, but I’m trying to stay abreast of every hearing in the Gargiulo case.

8:25 AM
There’s a bit of media and people now at the end of the hallway but only one other gentleman is sitting down at this end.

8:29 AM
Several cameramen leave the 9th floor.

8:40 AM
A pretty female bailiff shows up for Dept. 108 but the door is locked.

8:43 AM
Dept. 108 is opened and the female deputy goes inside.

8:57 AM
Here comes DDA Akemon with his female clerk and a second clerk.

9:08 AM
Inside Dept. 108. Judge Ohta’s regular court reporter is back. DDA Shannon Presby is in the well. He and Judge Ohta chat.  Mary O’Callaghan’s defense attorney arrives. He and DDA Presby chat about the next witness DDA Presby will call. Mary O’Callaghan arrives with a female friend a few minutes later.

The Red Vine tin calls me. It’s almost empty. For the first time, I notice a bowl of candy on the court reporter’s desk. I could not work at all with a bowl of candy in front of me.

Judge Ohta and DDA Presby chat about a photo of the mountains that’s displayed on the overhead projection. In this conversation, I learn that DDA Presby climbed Mt. Whitney. In continuing their discussion about climbing, Judge Ohta states that on a particular climb, he “... went with Judge Lomeli and Rubin.”  Altitude sickness is mentioned and then Judge Ohta talks how a bag of compressed trail mix was all blown out when he got to the top.

9:26 AM
Defense attorney Lindner arrives. Judge Ohta asks for Gargiulo to be brought out. He looks a little paler than usual today. Gargiulo leans in to speak to the bailiff.

We go on the record. The court states that Mr. Gargiulo is before the court. Counsel states their appearances.  The court continues, “Mr. Gargiulo requested to conduct a Marsden Hearing .... [I] don’t have the date ... [it was] ... about a week ago. ... He logged compaints against Mr. Lindner.”  Because of the timing, a transcript was not prepared. The court indicates they cannot conduct the second part of the Marsden hearing. Mr. LIndner didn’t get a transcript until today. There is discussion about what day to return.  Tuesday, June 2, is mentioned, where they will continue for the remainder of the prelim.

Mr. Gargiulo has complaints to submit. He has complained about the jail and about Mr. Lindner. The court indicates that they can talk about that next time. I believe Gargiulo has a document he’s prepared. It’s a paper trail about the Marsden hearing. Judge Ohta  asks that it be shown to Mr. Lindner. “Mr. Lindner will had that back in a few moments.” Gargiulo is then taken back into custody.

Lindner looks over the document with Abe at his side. Gargiulo was in the courtroom for less than five minutes.

June 2, 2015
9:17 AM
I’m on the 9th floor hallway. Judge Ohta has been in and out of the courtroom, using the little break/copy room at the end of the hall.

DDA Akemon arrives.

Now inside Dept. 108.
DDA Akemon and Mr. Lindner chat in the well. Abe and Lindner arrived earlier before I went inside. There’s a new, full tin of Red Vines at the clerks counter.

9:21 AM
Counsel check in at the clerks desk.

DDA Presby returns. Judge Ohta and DDA Presby chat. Judge Ohta likes to chat with counsel off the record.

9:32 AM
Gargiulo is brought out. He sits in the same spot, the end table seat. The chairs that defendant’s sit in have low backs and no wheels. Counsel get chairs with wheels. Abe sits to Gargiulo’s left and Lindner to Abe’s left.

Judge Ohta is at the bench reading. He asks his court clerk for the Gargiulo file. I note that it’s two separate files and about 9 to 10 inches tall. Ohta places the papers he was just reading in one of these files.

We go on the record. We are continuing the Marsden hearing. The court states it was started on May 14. A transcript of the proceedings was made and sealed. It was unsealed for review [by the court]. There was an error. It was dated wrong. In any event, will have the court reporter correct the date to reference May 14.  The court indicates that Mr. Lindner filed his response. The Marsden hearing was in camera.

Gargiulo is handed Mr. Lindner’s response. The court tells the defendant, “You would want to read it  and digest it and come back.”  Gargiulo states, “I’m going to have to respond.” ... There are a lot of inaccuracies.” The court asks, “How much time do you need? ... Within a week?”

Gargiulo tells the court, “I’m going to have to respond back and I have no access to case law ... but I have to respond.” Judge Ohta tells Gargiulo that it is up to him what would like to do. It’s up to him to respond.

Gargiulo brings up the fact that the next pretrial is June 12. He doesn’t know if the court wants to go back and forth between the Marsden and the pretrial hearings. I believe Gargiulo asks the court what he would suggest.  The issue is picking a date to return before the June 12th date.

Lindner suggest June 8. On that date, Gargiulo would be in custody a total of seven years. The court asks Lindner if he’s fixed on that date. Gargiulo asks what day of the week is June 8. He is told it’s a Monday.  Gargiulo tells the court that’s a bad day. There’s a lot going on at the jail. Gargiulo asks for Tuesday, June 9.  The court sets the date at this Friday, June 5.

The court asks DDA Akemon if he has anything to add. “Nothing, your honor,” DDA Akemon replies. He adds that he will not be available but his co counsel, DDA Garrett Dameron will be here. The court informs the prosecution that they are not required to be here.

Lindner then addresses the court. He tells Judge Ohta that DDA Akemon, at his request, pulled each and every visit that Gargiulo has received at Men’s Central County Jail. Apparently, there are a handful of written records documenting [Lindner’s?] visits to the jail to see Gargiulo.

Gargiulo then addresses the court. He asks, “How will i be able to get a medical order?” If I’m reading my notes correctly, it’s for a dental visit. The court informs Mr. Lindner his client is requesting a medical order. Lindner replies, “I think this is number thirty or forty, but I will prepare it.”  The court indicates they will sign it.  For the record, Judge Ohta states this is a continuation of the Marsden Hearing [held in camera] but this is not a part of the Marsden hearing at the moment. And that's it. Until June 5.

June 5, 2015
8:25 AM
I’m on the 9th floor. There are a few people down at the left wing of the long hallway, and there are a few down at the other end of the hallway, too.

It mostly looks like general public and a few attorneys waiting. I don’t see any juror badges. I’m sitting on a bench at the center of the hallway because that was the only spot that had an available outlet for my laptop. Looking down to my right, I see Judge Ohta. He looks my way but I believe his arm up hello is to the Asian gentleman who is passing in front of me at the moment. I’ve seen this man before. I believe he’s a clerk in Judge Charlane Olmedo, Dept. 105.

Dept. 104, Judge Perry’s clerk stepped out into the hallway to unlock Dept. 104’s doors. She saw me and said hello.

The jury is still deliberating in the Mary O’Callaghan case in Dept. 108.

I see the bailiff for Dept. 107 open the courtroom doors and greet counsel waiting to go in.

Mary O’Callaghan and her counsel are clearing security.

It’s my understanding that several departments from the 17th and 18th floors of the former DA’s office have moved across the street and it’s pretty hectic over there. The DA’s office gave up the 18th floor but are keeping the 17th floor.  I know that the Administration offices and Major Crimes moved into the new space.

8:41 AM
It’s my understanding that DDA Akemon won’t be here today, but that Garrett Dameron will.

8:44 AM
People Magazine investigative reporter, Chirstine Peliski arrives. She’s wearing a dress and looks nice. I’m a bit envious of her toned legs.

8:55 AM
Back in the hallway, Judge Marcus comes down.

He opens the door to Dept. 108. Then Dept. 107 then Dept. 106. He enters 106. After less than half a minute, he comes back out and heads back down towards his courtroom.

9:05 AM
I’m inside Dept. 108.

The jury is deliberating in the Mary O’Callaghan case and they have submitted some questions to the court. Judge Ohta goes on the record in that case. Jurors asked questions and asked for three things. Regarding the testimony of a witness, they want clarification on factors to determine “reasonableness.” The court tells counsel he has prepared a response. They also want read back of testimony of a wtness.

DDA Presby and defense attorney TK Rico disagree on how much of that testimony will answer the jury’s question. DDA Presby first outlines where he feels the reading should start and end, then Mr. Rico argues where he feels this read back should start and end. In conclusion, Judge Ohta agrees with the people, and explains his reasoning behind his ruling. DDA Presby presents one other section of the testimony but the court denies this read back.

Another case is heard. A defendant in a blue jumpsuit is brought out. Lindner gets some Red Vines at the clerk’s counter. Lindner and Christine chat. Since this will take a while, the court informs Mr. Lindner to come back in 30 minutes. Mr. Lindner exits the courtroom.

In the O’Callaghan case, Judge Ohta takes the bench without his robe. He goes on the record. The court reporter was sent back into the jury room for the read back of testimony. I’m surprised. I thought that always happened in open court. I learn something new every day. The court states they need to establish for the record, and the court report establish for the record, that the jury stopped the court reporter from reading. The testimony the court thought they requested they did not need. I take a break to stretch my legs.

10:15 AM
We are on the record in People v. Gargiulo. There is no deputy DA here. The court stated they did not have to be. This is a continuation of the Marsden hearing. They are currently not in camera. Judge Ohta asks, “You received Mr. Lindner’s response to the Marsden allegations?” “Yes, your honor.”  There is something about certain judges and what they would do. Gargiulo tells the court he is not ready to respond. I believe he states he has to go through discovery [?]. The court states they are going to have to clear the courtroom and delve into it a little bit. “Not that I’m not going to let you respond.” 

During this time or a bit little later [my notes are not clear], we hear “Buzz! Buzz!” from the O’Callaghan jury. I could swear that Gargiulo jumped a bit in his seat. Judge Ohta informs Gargiulo, “That’s not related to this hearing.” Gargiulo laughs and tells the court that he understands that it is not.

The courtroom is cleared.

Sometime later during the morning session, the O’Callaghan jury comes back with a verdict. The Gargiulo Marsden hearing is continued until June 9, the same day there is a hearing in the Lonnie Franklin, Jr., case.

June 9, 2015
I was on the 9th floor pretty early today, but Mr. Lindner didn’t arrive. By 9:00 AM, I saw DDA Beth Silverman clear security and head down to Dept. 109 at the other end of the hallway. I get up from my seat and head down to Judge Kennedy’s courtroom.

Once the Franklin hearing was over, I went back to right outside Dept. 108, to wait for Mr. Lindner and his paralegal, Abe.

3 Male Defendant Case
When I enter Dept. 108, there is another hearing in progress with three defendants.  The DDA Is Joshua Ritter. DDA Ritter was a clerk in Major Crimes during the Phil Spector trial. After his clerking period was over, he applied for one of the few DA positions and he was hired. Since then, I hear he’s done some great work.

Judge Ohta is reviewing what happened at the last hearing. I believe one of the defendant’s, possibly two, rejected plea deals.  The court let [2?] defendants speak on the court phone last week, to speak to loved ones. The court verifies that is what happened. One defendant tells the court he doesn’t remember if he spoke on the phone or not.

Judge Ohta continues to speak to this defendant directly.  The defendant is not cooperative in answering Judge Ohta’s questions. The defendant’s attorney apologies to the court for his client.  The defense attorney tells the court, “It seems like he is in denial.”

Judge Ohta goes on about the defendant not acknowledging that the court allowed him to call his mother, and the defendant wouldn’t acknowledge it.

Judge Ohta is quite patient with the defendant and doesn’t even raise his voice at all. His attorney pleads to the court that his client invokes his right to remain silent.  Judge Ohta then addresses the defense attorney about what happened.  The defendant refused the prosecution’s offer and there was no counter offer.

Judge Ohta addresses the defendant. “Mr. [X], do you understand the offer?” Yes, your honor.”  The prosecution rejected the previous counter offer. The defense attorney informs the court [the offer?] was up to 12 years.

I believe the defense attorney tells the court that his client is not done; not where he’s at now, and not what he’s saying to him.

10:10 AM
Mr. Lindner arrives and approaches the well. He apologizes to the court for being late.  Judge Ohta tells Lindner to return in a half hour.  Lindner goes over to the clerk’s counter to get some Red Vines.

There’s more with this case. The defendant now wants to waive his right to an attorney and have a Faretta hearing. He wants to represent himself.

Judge Ohta states for the record that the defendant has not graduated high school. Judge Ohta then explains to the defendant, the intricacies of [?possibly] the defendant’s state of mind. The defendant previously wanted to hire a lawyer in the past. So now he wants to represent himself.

The court asks the defendant, “Can you read?” The defendant replies, “80.” The court asks, “You think you can do this when you don’t have the ability to read 100%?” The defendant tells the court, “I’ll learn.”  The court asks, “You’ll learn to read?”

The court tells the defendant, “If you think you can [represent yourself] and then later ... you will get a lawyer back ... that won’t happen. ... that’s how you presented to me earlier.”

The court orders the [bailiff?] to give the defendant a Farretta form. He orders the defendant to come back tomorrow. The defendant must show the court that “... you understand the form and are freely giving up your rights.”

Judge Ohta reminds the defendant, “I’m not your attorney. You’ve got to think this through. .... But if you tell me [?] ... I can’t help you. .... I’m not here to take sides.”

The defendant is brought back into the custody area. Judge Ohta lets out a heavy sigh at the bench.

Fraud Case - Three defendants
Next up, Judge Ohta chats with counsel off the record in a fraud case. Both sides are explaining their positions. There’s quite a bit of discussion on the losses the bank incurred, the court’s incurred and the losses of the county recorder. It’s not a matter of just homeowner’s who lost. The people are countering the defense position as to how the loss is calculated. The court reminds the parties that he is not involved yet.

Two female defendants have come to the prosecution’s position.  It appears these two defendants will take pleas on the 26th. They go on the record and counsel state their appearances for the record. The older female defendant is out on bond. The younger female defendant is in custody, and has the same last name as the older woman. The male defendant’s last name is not the same.

Judge Ohta states for the record that counsel discussed the case off the record. The female defendant’s have reach a decision [plea agreement] with the people. These defendant’s agree with the prosecution’s calculation of the loss incurred. The younger female defendant will be sentenced to 11 years. The older female defendant 18 months with her time served going towards that and also she gets into a drug rehab program. So a split sentence. The male defendant at this point, is going to trial alone.

Waiting for Gargiulo
11:36 AM
Mr. Lindner compliments the court on his demeanor during the first of the two previous hearings. Judge Ohta replies, something to the effect of, that he can feel his own emotion here.  The court and Lindner chat about the age of the defendants and when they would get out.

The defense attorney for the problematic defendant comes out of the custody area. Judge Ohta addresses him and tells him, “Mr. [?], I forgot you were still back there!”  The attorney replies on behalf of his client, “Thank you for being patient.”

The defense attorney for the male defendant in the fraud case and Mr. Lindner exchange business cards. It appears this defense attorney represented Gargiulo before the death penalty was brought into play.

Judge Ohta is still on the bench. He closes his eyes for a moment and leans back in his his high-back leather chair.

Gargiulo
11:45 AM
Gargiulo is brought out of custody and I leave the courtroom.  I want in the hallway until noon when I have to leave for a dental appointment. I’ll have to wait until June 12, to find out what happened in the Marsden hearing.

Coverage of the June 12 hearing coming soon. At that hearing, Gargiulo makes an interesting announcement to the court.