Michael Gargiulo, Pretrial Hearing 45

Previous post can be found HERE.

Michael Thomas Gargiulo, Arrested in June, 2008

November 2, 2018
Personal Update:
It's been a few days since I vacated my home of 21 years. I am in temporary housing until the end of December. Luckily, I chose a place where I can still take the Orange Line to the Red Line to get to the downtown Clara Shortridge-Foltz criminal court building.

The 9th Floor
8:31 AM
I'm the first person attending this case on the 9th floor. There are barely 8 people spread out along the long hallway. There are attorneys going into Dept. 106, Judge Fidler's court that I've never seen before. There must be another hearing beside Gargiulo's today. I suspect Gargiulo's hearing will not be first up on the schedule.

There is a pretty young girl on the floor obviously waiting for Dept. 106 to open. She might be a reporter or an intern with the DA's office.

8:45 AM
Second chair defense attorney Daniel Nardoni arrives in the hallway. I also see lead counsel Dale Rubin down at the center of the hallway, entering Dept. 103 or 104. Mr. Nardoni approaches a woman he recognizes on the floor and they chat.

8:50 AM
DDA's Dan Akemon and Garrett Dameron arrive on the floor. They stick their heads into Dept. 106 to check in with Judge Fidler's clerk, Wendy, to let her know they are here.  I overhear someone ask if Mr. Rubin is in Dept. 106. As always, Mr. Nardoni says hello to me, addressing me by name.  A few minutes later, Mr. Rubin comes down the hall from Dept. 103. The hallway is still very empty. Hardly any traffic. It doesn't appear that there is a single courtroom on the floor that is currently in trial.

8:52 AM
I head into Dept. 106 say hello to Wendy and take a seat. I pass the defense and prosecution teams having a very friendly chat in the ante chamber. It's very refreshing to see all the attorneys on both sides of a case treat each other with respect and deference. From what I've observed over the years, DDA Akemon and Mr. Rubin have known each other for some time and get along quite well.

There will be another hearing before Gargiulo's. Gargiulo's case will be heard at 10 AM.

9:10 AM
Mr. Nardoni enters and greets the court reporter. There are several other attorneys here for the other case, which is a multi-defendant case.  Mr. Rubin is in the courtroom. When he takes a seat, I notice his pink and blue large check-patterned socks.

9:27 AM
The other case, they are going to bring the defendant's out.

9:33 AM
Judge Fidler takes the bench. The three defendant case - possibly two trials or even three separate trials. The entire matter is held over to December 7th. And that's it. Judge Fidler is off the bench.

For the first time, I notice that there is a sanitary soap dispenser on the wall where the door to the custody area is. The dispenser is directly under the courtroom clock.

9:40 AM
There is a quick court review of a wire-tap hearing. For those of you who don't know, Judge Fidler hears and rules on, I believe, all the requests for a wire tap in Los Angeles County.

In the well of the court, I see DDA Akemon passing a document to Mr. Rubin and Mr. Nardoni. It appears the defense is officially receiving the document. Mr. Nardoni responds to DDA Akemon, "Thank you Daniel."  Mr. Rubin is mentioning something to Wendy about bringing a cart from home to place behind the defense table to hold all the files they will be working with on the case.

I see DDA Akemon dropping off a document at the clerks desk. I overhear a quick comment, "No rush." It has something to do with witnesses.

The chatter I'm overhearing at the clerks desk is a March start date for the Gargiulo trial. My heart sinks. One of the cases in the prior hearing is likely to be next up on Judge Fidler's calendar to start in January. Judge Fidler's calendar rules everything else. From what snatches of conversation I'm hearing now,and from what I believe I heard the clerk discuss with other counsel in the prior hearing, one of the three defendants in that case, is not in the greatest of health. The goal is to get his case to trial as quickly as possible. That's why Gargiulo will probably go after that case.

9:45 AM
Gargiulo is brought out. He is completely clean shaven except for a very small mustache. The green bag he carries with him is placed on the floor at his feet. He's wearing his black, horn-rimmed glasses. He looks much the same as he has in prior hearings.

9:48 AM
Judge Fidler takes the bench for the Gargiulo matter. The defense 995 motion is first mentioned. I've been waiting for the defense to present their 995 motion back in 2013, several attorneys ago. For those not familiar with a 995, it is a defense motion to dismiss the case. It's usually the first motion filed after the completion of the preliminary hearing. Judge Fidler asks if they wish to argue. Mr. Nardoni speaks for the defense on two motions by the people to admit evidence: the 1101b DNA evidence in the 1993 Illinois murder of Tricia Pacaccio and the People's Perkin's Operation. 

Mr. Nardoni briefly states that the court is well aware of Illinois v. Perkins (a ruling affecting Miranda when undercover agents are placed in a jail setting). Mr. Gargiulo was at the LA County jail (in LASD custody) when he was brought to another city jurisdiction, and placed in a cell with two undercover agents. Mr. Nardoni argues that this Perkin's Operationin Gargiulo's case was different than the usual encounters. "He was taken out of the cell and grilled. ... put back in the cell ... taken out again a grilled by LAPD and Downey police." In the people's response, they state Gargiulo had the benefit of a toilet and sleep.  Mr. Nardoni argues the People's Perkin's Operation goes beyond a Miranda type issue. Mr. Gargiulo was not given medication he required. "They took undue advantage of him." 

Mr. Nardoni then argues that, over counsel's objection, the Tricia Pacaccio evidence that was admitted in the prelim under 1101b. He argues that the Pacaccio case, as it is related to the other homicides, there is nothing that relates except the stabbing. Mr. Nardoni argues the evidence is not unique enough. 

Ashley Ellerin murder in February 2001. Nardoni argues, "Easy to say but for Pacaccio, he would [never?] been held to answer on Ellerin alone. ... There's no evidence on it's face. ... The last time [Gargiulo] was seen in the area [of Ellerin's murder] was around November 2000." From January 1st to her [Ellerin's] death he was never seen in the area. There was no DNA No footprint match. No hair fibers or anything to connect [Ellerin's murder] to Mr. Gargiulo.

With the Pacaccio evidence, they [people] are able to prove identity as it relates to Pacaccio, and they are trying to piggyback Ellerin case onto that.

Judge Filder asks to hear from the people. DDA Akemon informs the court that back in December, the people dismissed the burglary charges. I believe DDA Akemon informs the court that these issues were litigated before the prelim,  ruled admissible and it is not proper to relitigate them here. DDA Akemon goes over the basics of the preliminary hearing: 10 days long; 46 witnesses and 37 exhibits. There are over 1,221 transcript pages. In conclusion, the people had Gargiulo connected to three [attacks] and evidence of violence against three other women. Very compelling circumstantial case.

Mr. Nardoni tells the court that he thinks Mr. Akemon misspoke. We have DNA in Pacaccio. She was found at [her] doorstep at home, outside. Others, the attacker broke into apartment[s]. Mr. Nardoni mentions the Bruno case and that in the Murphy case, the same incident the attacker broke in. "Ellerin, that's not a break-in." Detective Small testified all the windows were secured and could not determine any point of entry of the residence or someone [had a] key to the entrance. Mr. Nardoni states that there were two other people who had keys to Ellerin's home: her roommate and the manager. The Ellerin case is unique. There's no DNA in Ellerin or any other physical evidence.

Judge Fidler rules. "I believe Judge Johnson had more that enough evidence..." The court mentions the 1101b and Perkin's Operation. The motion to dismiss is denied.

Mr. Nardoni tells the court, "We need a trial date." Then the case that has been in Dept. 106 for the past nine months is mentioned.  The 12 defendant preliminary hearing in the medical insurance fraud case is the one involving Kelly Soo Park. My notes are not clear on who makes the comment, 'That hearing has got to be coming to an end.'
The court tells the parties that another case will go before them in January. It's not a death penalty case. It will be tried in two separate trials and be six to eight weeks for each. There is one defendant that they need to get to trial first. The other defendant could possibly go after the Gargiulo case. Wendy reminds the court that Mr. Rubin is waiting to retire. I silently note that Mr. Rubin has been waiting to retire since 2017. The Gargiulo case will be Mr. Rubin's swan song.

A return date is finally selected: February 1, 2019 with the case calendar set at zero of 60 on that date. There is speculation that the other case could fall through and not go to trial in January. DDA Akemon, Mr. Rubin and Mr. Nardoni confer. They ask the court if there is a date in December that they can return. Wendy states there are no dates available in December. Judge Fidler's calendar is packed.

Mr. Rubin addresses the court. In 2016 Judge Gordon assigned the case over to him once Mr. Lindner was relieved. Mr. Rubin was assured the case would go to trial in 2017.

Judge Fidler tells the parties that the 12 defendant trial [prelim?] is a disaster.

DDA Akemon tells the court that they are in agreement with the defense. They are hoping not to lose their place in line.  The clerk tells the parties there is no November date available either. Judge Fidler asks to speak to Wendy for a second. DDA Dameron tells the court that whatever date, the February 1, 2019 date would be for arguing the 1101b and Perkin's motions. The February 1st date is locked down.

The court addresses the defendant. "Mr. Gargiulo, is that agreeable to you sir?" Gargiulo responds, "Yes."

The court states they will litigate both.

Then the issue of a jury questionnaire is discussed. Mr. Rubin informs the court that the defense does not want one. They want to have individual juror questioning in voir dire.  Mr. Rubin tells the court a name of the type of questioning, I have "...Hobi preferred" but I don't know if that's the correct term. Mr. Rubin wants to question jurors individually on their feelings on the death penalty vs LWOP. Mr. Rubin states again he is against a jury questionnaire. He prefers a capitol exam.

The court responds, "If you would like to make a formal motion.... I'm disinclined." Judge Fidler recommends to the parties to prepare a jury questionnaire.

And that's it. At 10:10 AM Gargiulo rises from his chair. The sheriffs pick up his green bag and hand it to him. Mr. Nardoni goes back into the custody area with him. About five minutes later, Mr. Nardoni comes back out of the custody area.

Outside in the hallway, I ask Mr. Rubin for a moment of his time. As polite as he has been over the past three years, he appears a bit irritated by my request. I explain that I am an independent journalist who has covered this case since 2012 and am hoping that he would be willing to share copies of his motions with me. 

I don't mention to him that I am hoping he will be willing to share copies of his motions because as an independent journalist, my budget to purchase them from the court is very limited.

Mr. Rubin flatly declines. He tells me I can purchase copies of his motions from the court. I then ask him if he and his co-counsel would be willing to sit for an interview. I make it clear to him that I would not be asking about the case but to do a profile on them as defense attorneys.

Mr. Rubin's tone changes. He is quite adamant in saying no. He tells me he never cooperates with the press. He does not speak to the press. He mentions several major networks by name that have contacted him on the case. Mr. Rubin tells me he never cooperates or sits for interviews. He says that I can go online and find out everything I need to know about him.

Mr. Rubin's response is disappointing since I will have to explore other avenues for getting copies of any defense motions. I know I will not be able to purchase them all. However from a defense standpoint, Mr. Rubin's policy of not cooperating with the press benefits his client the most.

Looking back, I find some irony in all of this. Over the years, I have been contacted by a few people who knew Gargiulo.  Some have shared information. Some have not.

In June of 2015, I was contacted by a woman who stated she was in phone and letter contact with the defendant. She knew him from high school. This was during the time that Gargiulo was represented by Mr. Lindner and it was clear from the pretrial hearings that Gargiulo could not stand his counsel, refused to cooperate, was trying to get a new counsel assigned and was unsuccessful in that endeavor.

The individual stated that Mr. Gargiulo wanted me to contact him via letter and possibly meet with him in the private attorney area to discuss the court proceedings with him. The individual stated that Mr. Gargiulo thought that the judge [At the time, this was Dept 108, Judge Sam Ohta] and his defense attorney were "...being deceptive in court and he feels that he is involved in a wrongful case." I respectfully declined.

As an independent journalist with limited resources, T&T has had a long standing policy of zero contact with potential trial witnesses or charged defendants while the case is pending. Anytime someone has contacted me on a pending case, I always check with the assigned Deputy DA's to see if the individual who has contacted me is on a witness list or someone on their radar.  Some journalists might ask, How could you pass up the opportunity to sit and talk to Gargiulo? To me, the answer is easy. My goal has always been to report on the story as an observer. I don't want to become a part of the story and end up on the witness stand myself.

Uncertain Future for Trial Coverage
I was hoping that the Gargiulo case would go to trial in January and take the estimated five months for three trials: guilt, sanity and penalty phases. I had originally hoped that I could continue reporting on T&T for another year, but things have changed for me. That's not going to be possible. I will need to return to employment much sooner than I had originally projected. I was hoping that in June after the case was finished, I could brush up on my computer skills and look for work in my prior field as a compliance auditor in the financial industry.

With this trial starting in March or even later means after covering the case since 2012, I probably will not be able to continue T&T and cover the Gargiulo trial without an additional source of income at the same time. Possibly a sponsorship if I can find one or trying to raise funds through a Go Fund Me campaign.

So unfortunately, at this time, things are uncertain for continued trial coverage into 2019.

The next post on this case can be found HERE.