Michael Thomas Gargiulo, Pretrial Hearing 46

The previous hearing on this case can be found HERE.

Michael Thomas Gargiulo, booking photo
June 2008.

UPDATE 2/23: Corrected Gargiulo's age.
UPDATED 2/16: Edited for spelling errors, clarity. Sprocket
February 1, 2019
I was late getting out the door this morning. It now takes me a hour-and-a-half to get to court via public transportation. I arrive on the 9th floor of the Clara Shortridge-Foltz Criminal Justice Center about 10 minutes before 9 am. I know Judge Fidler's courtroom opens at 8:30 so I head inside.

Lead defense counsel Dale Rubin is in the well of the court. CBS 48 Hours producer Greg Fisher is in the gallery sitting in the back row with Christine Pelisek, People Magazine reporter. I debate on whether to sit with them. I like to sit in the second row. I hate sitting in the back row because I cannot hear as well. I decide to sit in the third row in front of them, so I can still chat.

There is a bit of conversation between the press and Mr. Rubin, who is quite reticent about talking to the press about his client. Anything but that. All he will mention is, when he was supposed to retire in 2017 -Gargiulo is his last case- and where he would like to move to, out of California. Over the last few years, I've observed Rubin to be a friendly man and have had a few conversations with him. He gets along very well with the prosecution. He also speaks and interacts with Gargiulo respectfully. I'm betting that goes a long way with the defendant.

8:55 AM
Deputy District Attorney's Dan Akemon and Garrett Dameron enter Dept. 106 with Retired Sheriff's Detective Mark Lillienfeld. I've known Detective Lillienfeld for a long time. I saw him testify in the first Phil Spector trial and the second. He gives me a big smile and says hello.

A few minutes later Defense attorney Dan Nardoni enters. There is now a huddle in the well between the two teams as they confer over documents. I note that Nardoni has on a nice black suit. My eye is drawn to the red and black handkerchief in his suit pocket.

Over at the clerk's desk, Wendy, Judge Fidler's clerk for as long as I've been covering trials is not here. There is a man who is sitting in for her. There are two extra deputies in the well besides the bailiff. Behind me, I listen in as Greg and Christine chat about other cases they are covering. Not a single one rings a bell with me.

9:07 AM
The court reporter comes out to take her seat in the well. I stand up to look in the jury box. There are no notebooks on the jury seats which leads me to believe Judge Fidler is not in trial at the moment. Attorneys come in for other cases.  A Judge in robes I don't immediately recognize strides into Dept. 106 rather quickly. He asks the stand-in clerk at Wendy's desk if he can have a few minutes with the judge. I know most of the male judges on the 9th floor. Judge Coen, Judge Marcus, Judge Perry, Judge Fidler, Judge Lomelli, Judge Pastor. If the Judge was from this floor, I'm thinking this is Judge Curtis Rappe, in Department 103 but that's just a guess.

9:13 AM
Another defendant is brought out. He's a smallish man wearing a blue jumpsuit.

9:14 AM
Judge Fidler takes the bench.

The first case is continued to another date. It's over quickly. Then a second case, with no defendant present that takes less than a minute.

Then the Gargiulo case is up. The clerk asks DDA Akemon if counsel wants to confer with the court first. DDA Akemon responds, "I think we need the defendant out."

Gargiulo comes out. He looks much like he did last time. His head is completely shaved bald, like it has been for several years now. He has a mustache that is still dark and a goatee that is almost completely white.

The first issue discussed is the defense 995 (Penal Code) motion to dismiss. Rubin tells the court it is a non-statuitory motion. There are documents attached. The motion has not been argued yet. That motion is set for Friday March 1. I have been waiting since 2012 for this motion to be presented and argued.

Next up, 1101b. DDA Akemon addresses the court. The people have several 1101b (Evidence Code) motions before the court and asking for rulings today. The first is a motion to introduce the Tricia Pacaccio murder that occurred in 1993 in Illinois. The motion was filed in 2013. This motion was also litigated at the preliminary hearing. It's a 55 page motion. The people have nothing to add to the motion at this time. The second 1101b motion is a knife attack on Ashley Green. It's a 20 page motion. The people have nothing to add to that motion. The third 1101b are statements made by the defendant during the Perkin's Operation [at the El Monte jail]. The people filed a 55 page motion.  Mr. Gargiulo filed a response. The people don't have anything further to add. 

The people's prior motion of introducing a signature expert, former FBI profiler Mary Ellen O'Toole is discussed. The people inform the court that they are not going to utilize Ms. O'Toole. The court asks the people what the basis for introducing her. DDA Akemon tells the court that the people believe they have ample [basis? argument?] to support this evidence.

Nardoni tells the court that the arguments in the people's motions 1101b motions come from Ms. O'Toole. 

I believe it's DDA Akemon that informs the court that in the Pacaccio murder, they have 19 points of similarity [to the California charges].

Nardoni argues that the 1993 murder of Tricia Pacaccio adds nothing to what the government already has to identity and intent.  "...but clear in this case that the Tricia Pacaccio case adds nothing further to the government case." Nardoni goes back to the Ashley Ellerin case. The defendant knew her and she lived close by. Maria Bruno, [they lived in] the same complex. The have a bootie found in the courtyard with the victim's blood and DNA and alleged epithelial [cells, touch DNA] to the defendant. Nardoni asks the court, "Is identity really an issue in this case?"

Nardoni continues with his arguments, shifting to victim Ashley Ellerin. Ellerin was stabbed 47 times. "Is that really an issue? [Maria] Bruno was stabbed 17 times. Her breasts were cut off. ... Is intent an issue?"  Nardoni then mentions Michelle Murphy. "The problem of introducing under the facts of this case ... unduly prejudicial on this case, particularly in the guilt phase. ... I believe the introduction of Tricia Pacaccio [murder] is evidence of propensity, all covered by 1101a."

Judge Fidler asks about the guilt phase. Judge Fidler mentions Pacaccio and Gargiulo, "...they grew up together."  Nardoni responds, "Killing [his] best friend's sister ... is really identity an issue? It isn't. ... [The] facts speak for themselves."

Nardoni then addresses the 1101b for Ashley Green. It was filed August 8, 2017. The Ashley Green incident occurred in 2002. Nardoni continues to argument that the facts of that incident don't fall under 11l1b. "He lived in the same complex. It happened in broad daylight ... by the door. ... Other incidents .... evening hours. ... He takes from his pocket, a 3" folding pocket knife. ... He gives it to her and she opens it up."  It's related to self defense. It may have been inappropriate but does it go, call for intent and identity. Nothing material. Nothing related. Nardoni adds, "Nonsense to talk about intent and identity on a pocket knife."

Judge Fidler asks the people to respond [for the record] and also address about admissibility.

DDA Akemon responds. "The 1101b issues were articulated [and litigated at preliminary hearing]. .. Nineteen similarities between Ashley Ellerin and Tricia Pacaccio attacks. ... We believe we met that burden under the [Dewalt?] analysis. ... We've met the standard of admission on Tricia Pacaccio. ... Mr. Gargiulo has pled not guilty by reason of insanity. So, 1101b is also relevant to his state of mind, in particular to plan and premeditate. ... I think we can add that as an area of relevance in the Ashley Green attack."

Judge Fidler asks, "How so?"

DDA Akemon responds, "So geographic ... lived near and around ... a knife to the throat. ... [There are] seven to eight similarities to other attacks to other women."

Judge Fidler asks the people to comment on Gargiulo's admissions. Judge Fidler brings up the alleged statement by the defendant, "They're looking for me for a murder in Chicago."

Mr. Rubin interjects and explains what he believes the court is referencing. Then DDA Akemon clears it up for the court. That there was an individual arrested in Chicago, regarding statements by Gargiulo here. The court asks, "Is that coming into evidence here?"

DDA Akemon responds that there are two individuals, a Temer Leary and Anthony Dilorenzo, former friends of the defendant who worked with him in 1998. Statements to the effect of, "I left that bitch for dead... or something similar. ... So the answer is yes, we plan to introduce [those witnesses at trial]."

Nardoni asks to add more to his rebuttal argument. He looked over the Ashley Green motion. "The people say that Mr. Gargiulo attacked Ashley Green. ... simply not true. ... She never reported to police, or assaulted by knife to police." Nardoni continues to argue that it does not go to intent.

Gargiulo is leaning forward, listening intently to Nardoni argue.

Nardoni argues that with the Pacaccio murder, "... we're talking about a trial within a trial. [The] relevancy is outweighed by the prejudice."

Judge Fidler asks for the spelling of Tricia Pacaccio's last name.

Mr. Rubin then steps up to argue against the 1101b motions. This is unusual. It's been my experience the court only allows one attorney to argue a motion, not two.  Mr. Rubin argues the point of the evidence as to the way the crime was performed, other than the fact that Ms. Pacaccio was killed with a knife. Ms. Pacaccio lived a couple blocks around the corner from the Gargiulo family. Her murder occurred outside the door to the house that leads to the driveway. "[The house] is on a corner. ... Anywhere you stand you can see what's going on in that area. ... It's not similar to other attacks. ... The one thing we really have, is to get in front of the jury another murder, what he's also charged for."

Judge Fidler asks, "Is [your argument] the set of similarities or any dissimilarities, you can't use it? Mr. Rubin responds, "I use a fingerprint, or you can't use it by the court. When [Gargiulo's?] case was investigated, ... there were a number of other cases that ... (he was not involved in) ... the prosecution said, a number of steps. I don't know what that means. ... But some circumstances could be related to any other murder of this type."

Mr. Rubin continues his argument that, if the Tricia Pacaccio case is brought in, that means another four weeks of witnesses. Then Mr. Nardoni gets up to continue arguing another point relating to the Pacaccio murder that is different than the other cases.

Again, to me, this is unusual that two defense attorneys are both presenting motion arguments on the same issue.

Mr. Nardoni states that it is believed at the time of the [Picaccio] murder, right across the street, there was a late hour party with alcohol. "That factor detracts from [a] signature." Nardoni adds, "There were several suspects in the Pacaccio case that ended up committing suicide."

DDA Akemon presents rebuttal statements about the "level of proof" in the Pacaccio murder. "His [Gargiulo's] DNA is on Pacaccio's fingernails ... and the witness statements." DDA Akemon references Mr. Rubin's comments about signature needing to be a "fingerprint." DDA Akemon continues, "... Tricia Pacaccio and Ashely Green ... the issue of intent. Those are admissible because they are sufficiently similar."

The court signals in it's first comment how it plans to rule. Judge Fidler responds, "[I] feel differently to Ashley Green. I'll let you introduce Tricia Pacaccio. ... What's sufficiently similar ... knowledge of [individual?] victims ...  proximity of victim and place ... and use of knife as a weapon. ... That satisfies the law. ... I don't think it's unduly prejudicial. ... Facts of crime ... even with DNA ... I've seen cases.

Judge Fidler then references the Juliana Redding murder that was in Judge Kennedy's court, alleged to have been committed by Kelly Soo Park, who is now in his courtroom on another case/charge.

Judge Fidler explains, "... there was DNA on a victim in a case in Judge Kennedy's court, and I have the [same] defendant in another case." (Kelly Soo Park was acquitted in the Redding murder. Sprocket)

DDA Akemon responds that he understands about Ashley Green. I believe he adds that he doesn't know if the defendant will testify. He doesn't know what the mental experts will say.

The Perkin's Operation motion is brought up by Mr. Rubin. "I reread the Perkin's motion. I think it's important to note in Perkin's, the Supreme Court decided ..." Mr. Rubin reads directly from the court ruling. I don't write all of this down. It's not new argument presented by Mr. Rubin, it's a published decision of the original Perkin's.

Gargiulo intently watches Mr. Rubin present the Supreme Court's ruling on Perkin's. Then Mr. Rubin goes on about what happened in the Perkin's Operation in Gargiulo's case. "Forty-eight hours of tape where Mr. Gargiulo is barraged by witnesses. ... [They said to him] Don't listen to your lawyer. You can talk to us! Gargiulo was not in his house. He was in a custodial situation so under pressure at the time. ... If we consider what the prosecution did in this case ... it is so far out side (the issue of Perkin's) ... Also, Gargiulo was on medication at the time."

Rubin states that Gargiulo was in custody, Perkin's was not. "I believe we have a fifth amendment violation and outside of Miranda. ... if not required to give Miranda because of custody setting and also because of outside of contact with his counsel."

DDA Akemon rebuts the defense oral arguments. "He [Gargiulo] did have contact with his counsel. ...I would emphasize, that Mr. Gargiulo was so comfortable ... he was sleeping and had food. ... There were two [officers with him]. ... He was so comfortable in that setting ... not only did he hatch a plan of escape ... he was trying to recruit the other deputies to go in with him."

Mr. Rubin responds. "I didn't hear anything from the prosecution about, Don't listen to your lawyer. You can talk to us." Mr. Rubin continues with more reading from the higher courts decision on Perkins. "The court has long held that there are certain interrogation techniques that are so offensive that they ..."

When Mr. Rubin is finished, DDA Akemon tells the court the people have nothing to add. Then Judge Fidler gives his ruling. "The defense did a good job pointing out specifics in this case. ... I don't see where they broke down the will. ... I don't see it. ... It may come close to the line ... but it didn't cross it." 

Judge Fidler rules the evidence from the Perkin's Operation will come into the trial. The court calendar is set as zero of 60 as of today's date.

DDA Akemon states they are asking for a trial date of March 18, 2019.  That date is agreed to by all parties. Judge Fidler does tell the parties that he has a hearing on March 15th, (I believe in the massive insurance fraud case) a motion to disqualify the prosecution in that case.

The jury questionnaire is discussed. The people and the defense have been working on that. It's about 99% completed. The court asks if they are going to have a  pre-screening of time hardship waiver for the jurors. The court brings up a motion filed by the people about the security of the courtroom.

DDA Akemon tells the court that they are looking at a three phase trial [guilt, sanity, punishment] lasting four months. To be conservative, four to six months. Mr. Rubin asks about possibly sequestering the jury. The court responds, "...probably not."

In conclusion, the 995 motion will be argued on March 1 and jury selection will commence on March 18.  And that's it.

Sprocket Notes
At the time of this posting (February 15, 2019), Gargiulo's birthday, he is 43 years old. He has been in custody waiting trial 10 years, 8 months. A future post will attempt to answer why it has taken this long to bring Gargiulo to trial.

Unfortunately, at this time I do not know if I will be able to cover this entire trial.  I hope to be enrolled in classes for the summer session.

The next post on this case can be found HERE.