Michael Gargiulo Case, Pretrial Hearing 30

Michael Thomas Gargiulo, in custody

July 14, 2015
8:18 AM
I'm on the 9th floor. The floor is somewhat busy. Lots of seats are taken. A mix of general public and attorneys. I don’t see any jurors at this end of the hallway.

Judge Ohta’s name is still on the door. But I know he’s not on the bench today.

I see private investigator Chris Nicey at the center of the hall. Hes talking with an attorney and a group of people that look like family.

Lots of counsel greeting each other and discussing cases. A slender blond woman wearing a badge I don’t recognize approaches another attorney with a big smile and a hug. “Hello John!" she says. "Nice to see you.”

DDA Akemon’s young intern is here but I haven’t seen anyone from the prosecution or the defense teams. A cameraman shows up at this end of the hall, looking almost lost. I ask him what department is he looking for. He replies, 107. I point to the right door.

Another young DA clerk arrives. She looks like she’s barely out of high school. The court clerk for Dept. 108 opens the door. Now Dept. 107 opens and the hallway empties as parties go into Dept. 108 and 107. I’m betting the Gargiulo hearing will not be first on today’s calendar.

DDA Joshua Ritter comes down the hallway at a fast pace, pulling a leather case on wheels. He goes into Dept. 108. Men in suits and women in professional attire come and go from the courtrooms at a fast pace.

A DDA exits Dept. 108 and starts chatting with a detective who was sitting with DDA Akemon’s intern. It’s Detective Small who worked the Ashely Elerin case.  [I resist the urge to introduce myself to Detective Small, even thought I feel I know him ever since I've read his preliminary hearing testimony.] The young woman with the DDA is his daughter, who is interning. The DDA, his daughter and Detective Small catch up on family news.

8:48 AM
The hallway is mostly empty now. We are waiting for defense counsel and DDA Akemon to arrive.

8:56 AM
Looking down at the other end of the hall, I see DDA Akemon chatting with two other people. He must have just arrived.

9:04 AM
DDA Akemon rushes down to this end of the hallway. He greets Detective Small, then Investigator Nicely. He then goes into Dept. 108 to check in with the court clerk.

Now I'm inside Dept. 108. I take my favorite place, in the second bench row. DDA Joshua Ritter is in trial. Judge Ohta's name plate is removed and there is no new name plate to find out who is sitting in for Judge Ohta until September.

There are a group of four DDA interns chatting away in the row behind me.

DDA's Ritter and Akemon are chatting away at the clerk's desk. There is a new court reporter at the reporter's desk and, there's a new bailiff.

9:08 AM
DDA Garrett Dameron arrives. He greets Detective Small and the other [Detective?] with him. They all chat.  DDA Dameron then goes over to chat with DDA's Akemon and Ritter.  Another defense counsel arrives.

9:12 AM
DDA's Akemon and Dameron leave Dept. 108. DDA's Akemon and Dameron could be having a discussion with investigator Chris Nicely in the hallway.

9:17 AM
We are still waiting. There is the case that is in trial and another case that has a pretrial hearing. The counsel for the case in trial are set up at the counsel tables. I see the replacement judge come out.

Surprisingly, I recognize him. It's his Honor Douglas Sortino, whose regular court is Department 124. Judge Sortino, back when he was a DDA, was assigned the Spector case from 2002-2005 and conducted the Phil Spector grand jury. In 2008, during the second Phil Spector trial, Judge Sortino was called by the defense as a court witness to testify on a discovery issue outside the presence of the jury.

In September 2012, Judge Sortino was one the four justices on the California Courts of Appeal, Division II, when Nels and Loretta Rasmussen, parents of murder victim Sherri Rae Rasmussen, were appealing a lower courts decision about the right to sue the LAPD.

In DDA Ritter's case, the two defendant's are brought out. The defendant's are in street clothes. One defendant has two interpreters. Two interpreters are assigned to give each other breaks. In Ritter's case, the court and counsel are going over modifications to jury instructions.

9:34 AM 
There is a commotion at the inner courtroom doors. It's Gargiulo's defense attorney, Charles Lindner. The doors open, and then Lindner quickly exits back into the ante chamber.

In the case in trial, DDA Ritter is arguing to admit 1101(b) evidence for a specific circumstance. Judge Sortino, brings in his experience with 1101(b) by referring to the Phil Spector case.  It's interesting to me that DDA Ritter, when he was still a clerk assigned to the Major Crimes Division, also worked the Spector case. Judge Sortino asks, "Do you disagree with me on [my?] analysis?" DDA Ritter explains that his motion is "identity" and he has no disagreements with Judge Sortino on his analysis.

Judge Sortino continues explaining about uncharged offenses and more analysis of the crimes and how that relates to his ruling.

9:35 AM
LA County Sheriff's Detective Mark Lillienfeld peeks his head into Dept. 108. Detective Lillienfeld and DDA Dameron leave the courtroom.  It's common in LA County courtrooms where it's a hurry up and wait situation, for your case to be called.

9:45 AM
People's investigative reporter Christine Pelisek arrives. She sits in the back row and chats with Detective Lillienfeld. The case in trial is waiting on a juror or two to arrive.

All of the counsel in the Gargiulo case enter the well. Lindner brings Judge Sortino up to speed on the status of the case. Lindner tells the court that his last filing was on June 15, a 1050 motion. Today, the case is 29 of 60. Judge Sortino reads the defense 1050 motion. Gargiulo is brought out and they go on the record. Counsel states their appearances for the record.

Judge Sortino asks, "Were are we at getting this ready for trial?" The court is informed that defense attorney Dale Rubin asked to be relieved from the case. He is currently appointed as second chair for penalty phase. Lindner tells the court that Mr. Rubin is in the same position as himself. 29,000 pages of discovery. The people have provided [through documentation?], many unproved violent crimes [for] in the penalty phase. Lindner continues, "Both guilt and penalty investigators need to go to Chicago. .... The people intend to introduce the [Glenview] Illinois, Tricia Pacaccio murder.... The people's theory is murder ... in that case, multiple stab wounds ... so ... [unique... consistent?] signature in that case. "

Lindner continues to explain the two victims in our case had multiple stabbings. "In Glenview, Illinois, ... detectives ... [are] no match for us ... [the] investigation [was] sloppy." On top of that, there is DNA regarding victims Murphy and Bruno, and how that relates to the Pacaccio murder. The defense doesn't have a [DNA] lab appointed yet but they do have an expert.

Next, Lindner explains the motion that he will file to separate out the Ashley Ellerin murder; that there's no scientific evidence, [or circumstantial] evidence to link the murder [back to Gargiulo]. The people are relying on modus operandi.  Lindner tells the court he's filed his 995 motion and the people are in the process of filing their 995 response.  The case also as a Perkin's issue.

[The court?] The case would have fourth and fifth amendment issues, based on the Perkin's Operation.

There are also fifth amendment issues.  Lindner makes a comment relating going to trial in 60 days as being at the Indianapolis Speedway [without the proper tires or equipment].

I believe it's the court who comments that Lindner's 1050 is the most detailed 1050 motion ever received. Judge Sortino states, "I think he's established good cause."  DDA Akemon states that the people, "Share the courts concern. ... We have a duty to do [that?] .... We are ready [for trial] ... We respect they have a lot of work to do."

DDA Akemon has a concern that the court hear from Mr. Rubin before ruling. Akemon would be much more comfortable if Mr. Rubin were here.  It's explained to the court that Mr. Rubin's position is secondary.  The court asks, "If you would like to set this for another week ... to get Mr. Rubin in here...." Judge Sortino goes onto explain to the parties that after next week, there will be a different judge in Dept. 108. [From conversations in open court, it's my understanding that Judge Sortino is going on vacation.]

Lindner tells the court that they "could be ready" around Thanksgiving, however, this is a high publicity case. Lindner mentions Ashton Kutcher would be testifying on the Ellerin death, and that will draw a large crowd.

After a bit more back and forth, the court decides, "Let's set a date next week. ... Get Mr. Rubin in here, and see to put the case over to a realistic date."

So return on July 23. No time waver at this point.

Judge Sortino then speaks to Gargiulo directly about the no time waiver and [Gargiulo's?]  own personal interest stand point. The court tells Gargiulo not to answer now, but to think about what
he's said.

Lindner tells the court that Gargiulo has been complaining about "pressure in his head" and "splitting headaches." His client was "shot [quickly] through the infirmary." The court tells Lindner to submit a medical order and the court will require that the medical treatment [reports?] be reviewed by the court.

DDA Akemon informs the court that the next date is 38 of 60.  The court rules that the last day is August 14 and will remain so.

And that was it for this hearing.

Michael Gargiulo Case, Pretrial Hearing 29

 Michael Gargiulo, in custody, 2008

June 15, 2015
8:15 AM
I'm in the hallway of the 9th floor. DDA Dan Akemon is here with a new law clerk. He tells me DDA Garrett Dameron is on vacation. The three of us chat for a short bit until DDA Akemon sees another DDA that he needs to talk to, and he's off.

9:00 AM
Inside Dept. 108.

Several attorneys are in the well for the case with three defendants that I wrote about in prior posts. This is the case where one of the defendants was brought out into the courtroom to speak with two women. It's a good bet this happened under court order by Judge Ohta.  I've never seen that happen before. Counsel are talking off the record, what to do with the case. Judge Ohta will be off the bench for two months. Another judge will step in to handle Judge Ohta's calendar.

Judge Ohta's schedule is discussed. His Honor comes back [from the appellate court] and starts the Johnson and Allen case September 8. All the attorneys in the current case are looking over their calendars and trying to juggle their schedules with the court to go to trial. DDA Joshua Ritter tells the court they will need three weeks for trial. There is discussion of possibly sending the case back to Dept. 100, Master Calendar Court, and then they get the luck of the draw as to which department the case lands in.

DDA Ritter tells the court they would like to schedule the case on the 22nd [July?] and take their chances on whatever Judge is put in Dept. 108.  Judge Ohta also tells counsel that Dept. 100 won't take a case for distribution to a courtroom unless it's 8 of 10. That's because Dept. 100 ensures 1382 issues do not get dismissed. Then Judge Ohta decides to have everyone back in chambers to discuss scheduling privately.

I step back outside into the hallway to work on my Lazarus oral arguments story. I pass DDA Akemon and Detective Mark Lillienfeld, chatting away in the ante chamber.

A bit later, DDA Akemon, Detective Lillienfeld and I are back inside Dept. 108. DDA Akemon and I chat about books we've recently read. We are waiting for defense counsel to arrive.

10:15 AM
Defense attorney Charles Lindner arrives with his son Abe, Lindner's paralegal. There are greetings all around.

Judge Ohta comes out from the back room area. Lindner thanks the court reporter for the transcript. Abe passes out documents to the prosecution. This could be Lindner's response to Gargiulo's 1382 request.

The friendly bailiff from Dept. 107 enters Dept. 108 from the custody area and says hello to the parties in the well. Greetings are exchanged and the deputy asks which case they are waiting on. This is the same deputy who was assigned to Judge Fidler's court during the first Phil Spector trial.

Lindner and Detective Lillienfeld have a discussion about a case, but I'm not positive it's this case.

DDA Akemon and Detective Lillienfeld quickly reads through the brief Lindner handed them.  After that, Lindner and DDA Akemon have a brief chat about California's death row.

Judge Ohta takes the bench and tells the bailiff to bring Gargiulo out. As usual, Gargiulo is in leg chains and his wrists are chained to his waist. Gargiulo appears to be smiling when he comes out. I He's carrying a file. He looks down at his file and doesn't speak to his counsel. Someone asks if a copy of Lindner's brief was given to Gargiulo.

Judge Ohta calls the case and all parties state their appearances for the record.  Judge Ohta gives a summary of what happened on Friday. Mr. Gargiulo, on Friday, gave notice to widrawal the general time waiver. The court asks if it's Gargiulo's intent to withdrawal his time waiver at the point.  Gargiulo replies, "That's correct, your honor."

Judge Ohta states for the record that the defendant has given notive to widtawal the general time waiver. That begins the 0/60.  Judge Ohta states the last day under 1382 is August 14.  Mr. Lindner filed a response to a speedy trial. Judge Ohta states, "The court read it. The motion to continue is premature. ... What I've read in [his?] response there, will be a motion to continue because of the amount of work that needs to be done. ...[The court} ... will not continue now. ... [The court] anticipates a motion to continue."

jDDA Akemon informs the court that he has a capital case in Dept. 109 [Albert Harutyunyan aka Alberd Tersargyan ], that is tentatively scheduled to start February 2016. The people will be back in court on June 23 to discuss scheduling in that case. DDA Akemon asks the court if they can come back on June 29 or June 30.

Mr. Lindner has no problem with that return date.

The court asks the defendant, “Do you have a preference Mr. Gargiulo?” Gargiulo replies, “Oh, no. Not at all.”

The court tells the parties. “I have one case each of those days. Lets come back on the 30th.”

That puts the calendar at 15 of 60 on that date. The court states Mr. Gargiulo is ordered back for additional pretrial.

Mr. Lindner asks the court if he may be heard. “... I would like to make a record.” The court replies, “Sure.”

Mr. Lindner continues. “As you know the defendant stopped cooperating. Your honor, as you know, ... sent us back. ... He would not speak to us. ... I don’t know if I can prepare without [my] client speaking to me.”

I believe it’s Mr. Lindner who is worries about irreversible error. “Nothing he is doing now ... is not the first time this has happened in LA County.”  The court replies, “It’s not the first time [this has] happened to me either.”

Lindner pleads for Gargiulo to work with him. “I stand willing to work with him at any time.”

Note: On June 30, I had to help Mr. Sprocket with his business and couldn't make the hearing. However, I did make the following hearing on 7/14. Sprocket.

Prosecution 1101(b) Motion

Defense 995 Motion

Defense Response to Gargiulo's Request for Speedy Trial (1382)

Michael Gargiulo Case: Pretrial Hearing 28

Michael Gargiulo, in custody, 2008

June 12, 2015
8:18 AM
On the 9th floor.  I wave to Chris Nicely, who may be here for Gargiulo or another case hearing.

DDA Marguerite Rizzo arrives on the floor. She greets a suited man sitting on one of the benches.  DDA Rizzo is co-prosecutor on the Joshua Woodward case and on the Lonnie Franklin, Jr., aka "The Grim Sleeper" trial.  The Franklin trial is scheduled to start in early September.

8:31 AM
I see DDA’a Akemon and Garrett Dameron in the center of the hallway. They are chatting with Chris Nicely.

Defense attorney Janet Levine arrives on the 9th floor. There is a hearing in Dept. 103 for the Joshua Woodward case. Levine is Woodward's lead defense attorney. Her cross examination of the prosecution witnesses in the prelim was stellar work.

I don’t see where DDA Akemon and Dameron went. They must have dropped in on another courtroom.

9:10 AM
People Magazine investigative reporter, Christine Pelisek is here. She checks on the Marsden hearing with the court. It’s finished and Lindner is still the attorney of record.

9:35 AM
Inside Dept. 108. DDA Akemon and DDA Dameron are in the well. Judge Ohta asks the bailiff to get Mr. Gargiulo. DDA Dameron informs the court that Mr. Lindner hasn’t arrived yet. Judge Ohta appears to pause.

9:37 AM
Defense attorney Charles Lindner arrives with his son Abe Lindner, who is also his paralegal.

Mr. Lindner asks Judge Ohta how his day is going. Lindner and Judge Ohta chat basketball. The team “Caviller’s” is mentioned.  

Over on the clerk’s counter, the tin of Red Vines is full.  DDA Akemon and Abe Lindner chat. Then Abe and DDA Dameron shake hands and chat. Charles Lindner continues to chat with Judge Ohta a bit before moving his wheelchair over to DDA Akemon.

The bailiff sets up the chairs at the defense table. Now the bailiff brings out Gargiulo. Gargiulo has a few papers with him.

9:44 AM
The court goes on the record and the parties state their appearances. The court informs counsel the Marsden was denied. The issue now is pretrial and the 995 motion. The prosecution states they are still working on their response.

Judge Ohta clarifies with the people, “You did not put on the prelim?” Lindner informs the court, “That was four generations of DA’s ago. The prosecution states they will have a reply ready in another month.

Then Gargiulo speaks up. He tells the court he wants to withdrawal his general time waiver and go to trial in 60 days and not have any other continuances to delay. 

Judge Ohta asks Gargiulo if he’s spoken to his attorney about this. Gargiulo replies, No. I’m not speaking to him.”



Judge Ohta tells Gargiulo, “We can walk through this. ... Mr. Gargiulo, you seem upset.” Gargiulo replies, “No, your honor.” Judge Ohta replies, I’ve seen you several times now [over the past few weeks]. ... “We can’t go into the Marsden. ... That’s sealed.”

Judge Ohta continues in a slow, deliberate fashion. He tells Gargiulo, “The issue of going to trial hinges on readiness of the attorney for trial.” Judge Ohta explains the federal law and the state law to Gargiulo. Gargiulo has a statutory right under California Penal Code 1382 to go to trial in 60 days. However, that’s not as important as his right to best representation of counsel under the 6th Amendment. The federal constitution is a considered [by the courts] to be a more important right, and takes precedence. Judge Ohta tells Gargiulo, “I know you want to push this, and whether he [Lindner] is ready or not is a decision he has to make.”

There are several motions by the defense that need to be filed.

Judge Ohta continues addressing Gargiulo. “I know you’d like to take back your right ... but it’s not as easy as that. ... I’m just laying out the legal landscape.”

Gargiulo responds, “He’s had plenty of time to prepare the case. ... I’ve been now seven years wrongfully accused.”

Judge Ohta reminds Gargiulo, “When you were pro per, you did not assert  your right to a speedy trial. .... If you want to do this ... and you can .... and you appear to be angry .... and appear to be retaliating because of what happened in the Marsden hearing.”

Judge Ohta adds, “I could be completely wrong about that ... but .... I would like you to speak to your attorney. ... He [Lindner] has filed his 995 motion. ... It has not been litigated yet. ... It’s putting Mr. Lindner in a very difficult position. It seems retaliatory.”

Gargiulo tells the court, “I object to that decision. That is not necessary.” The court replies, “It is necessary.” Gargiulo is taken back into custody. DDA Akemon and Lindner make a request to the court. They ask if they can go back into the jury room to chat privately. The judge gives the okay.

Judge Ohta then calls his second case, continued from June 9. It’s the problem defendant who wanted a Faretta hearing. It appears this defendant may have changed his mind about that. They need to hash out further scheduling for the case.

10:10 AM
We wait for the other case. The defendant is brought out. He is put in a chair right next to the bailiff’s desk. There are two women sitting in the gallery right behind that chair next to the bailiff. The defendant is allowed to speak to these two women. He appears happy to see them.

10:20 AM
Counsel come out of the jury room. Lindner asks the court if his investigator [Chris Nicely] and paralegal [Abe Lindner] can come back with him into the custody area to speak to Gargiulo.  Judge Ohta is fine with that. They all go back into the custody area to speak to Gargiulo.

Inside the courtroom, the bailiff is sitting in a chair right across from the defendant who is still chatting with the two women in the gallery. Christine Pelesik and I chat with the bailiff as to what the custody area looks like. I wonder if there are several cells back there. The bailiff informs us there is a single cell and there is a room where defendants can speak privately with their attorneys.

We learn that the deputies cannot just put any two defendant’s in the holding area together. It’s not the color of jumpsuit that determines who can be put together. They have to go by what the wristband says. All defendants have a wristband on them 24/7. Apparently, this wrist band tells them about the defendant. For example, they can put several defendant’s in a holding cell together, if they are all classified the same [for example, general population] and all speak the same language.

10:55 AM
Charles Lindner and Abe exit the jury room with their investigator. I hear Lindner say to Mr. Akemon that they will have to do an evidentiary 402 hearing on the 352 issue.

Counsel discuss a return date, possibly five weeks from now. Judge Ohta’s clerk informs counsel that Judge Ohta will not be in Dept. 108 for the months of July and August. It’s my understanding that Judge Ohta has been invited to sit on the California Court of Appeals during that time.

DDA Dameron goes over to the Red Vines tin. I believe Lindner throws out a date of the first week in August.

11:00 AM
Judge Ohta takes the bench, an we are back on the record in People v. Gargiulo. Judge Ohta asks the defense if they had a chance to speak to Mr. Gargiulo. Lindner informs the court that they all spoke to Mr. Gargiulo. Mr. Lindner spoke to him. His paralegal Abe spoke to him. The private investigator spoke to him. All during the conference, Mr. Gargiulo didn’t speak.

So Mr. Lindner will need to show the court, how much time he needs before he will be ready for trial. I believe it’s Mr. Lindner who tells the court that the prosecution and defense are on the same page regarding what needs to be done. There are three big motions that need to be litigated before they can get closer to trial.

Judge Ohta addresses Mr. Gargiulo. “You’re not required to speak to me on the record. ... You have counsel, .... but you can.” Gargiulo responds, “...[I] would like to withdrawal the general time waiver and set trial date in 60 days.”  Judge Ohta replies, “While you may want to, your attorney may not be ready.” 

Gargiulo tells the court, “I completely object to him being ready. ... He’s had plenty of time. ... I’m ready to go to trial. I’ve been wrongfully accused ... Anything other than [their? that?] date ... I know the law. I’ve [studied?} ... [I’ve gone to trade school.] ... I’m [an] educated individual, and that’s my right. .... He’s had ample time to prepare a defense ... and ... my right to go to trial.”

Judge Ohta tells Gargiulo, “You have an attorney who says he’s not ready.” I believe the court adds, “The conflict is in you own mind.” Judge Ohta cites a case [People v. Kowalsky?] and states that the defendant has a right to an effective assistance of counsel. ... And counsel must be prepared and effective. ... If the time period is violated, the time period dismissed. ... they do not carry weight..”

Judge Ohta methodically details out why the California statute 1382 is superseded by the federal sixth amendment right, if the attorney is not ready.  Judge Ohta continues educating Mr. Gargiulo as to what will happen. “You can assert your right. Mr. Lindner will then file a motion to continue and I will [have a conversation with him] as to how much time [he needs] and I will grant it.”

Gargiulo tells the court that his attorney is “... playing with my life and milking the system.” Judge Ohta responds, “you attribute all the delay to Mr. Lindner ... which I don’t see is wholly accurate. .... I’m just saying the parameters of law and how it will play out.”

Counsel then lay out for the court what they were discussing in private. The defense met with the DA’s about scheduling. They set out in detail, the next three major motions. They will be complex and may require evidentiary hearings. Mr. Lindner tells the court that they explained to Mr. Gargiulo what they are going to do and why, and why these motions will take longer than 60 days.

Lindner states they tried to explain to Mr. Gagriulo it was better to have an attorney totally prepared. Defense counsel states they told Gargiulo that what would happen is, [he would simply be taken back to court to do it again?].

Judge Ohta comments on the amount of discovery that he saw change hands. DDA Akemon informs the court that they just turned over to the defense, pages numbered 29,459 to 29,574.  Lindner states [in addition] there is also approximately 50 hours of audio recording. DDA Akemon states that’s a fair estimate of the number of hours of audio.

Lindner asks DDA Akemon if they have all the transcripts of the interviews with Gargiulo during the Perkin’s Operation at the Downey jail.

The only one [DDA Akemon] cannot find is the Downey investigation one. Lindner replies that the Downey investigation is not relevant to this case. 

Judge Ohta adds, “When Mr. Gargiulo represented himself, the people set a timeline to move towards trial. ...[they had] set a tentative date for trial. .... I recall, there being an idea that it would be sometime in the future .... [that timeline?] would show that it would not be 60 days from today’s date.”

Judge Ohta continues, “It just seems odd to me that Mr. Gargiulo is pushing towards trial. .... [It] just seems to me that Mr. Gargiulo is reacting [to the Marsden decision]. ... There’s a lot of pages that the defendant had seen in discovery.” Judge Ohta addresses Gargiulo directly. “You represented yourself for a while and you’ve seen it [discovery]. ... What I will not be seeing in my court is gamesmanship. ... For the 60 days ... you are, to some degree, pushing Mr. Lindner .... to move faster. ... In some cases [that might be fine].  ... [But] this is a case that has huge implications for you. .... You need to be [aware of them?]”

Gargiulo responds to the court, “I’ve pushed counsel for years and years.” Judge Ohta responds, “He [Lindner] said there are four motions that he [needs to litigate].” Gargiulo replies, “Yes, but he’s had time to do that.”



The court goes onto explain the problems this latest move by Gargiulo is up against. “I have a death penalty case, similar in scope to this case that will take four months. It starts in September. ... I’m not sure the other case will be ready in September but the parties are trying.”  Judge Ohta then addresses counsel. “Realistically, when do you think the case might go to trial?” DDA Akemon responds, “The prosecution is ready.” The question is, when can Mr. Lindner be ready. I believe DDA Akemon tells the court that counsel talked about Lindner possibly being ready in January. 

Lindner tells the court that 100% of his time is spent on this case and only one other case. 90% of his time is being spent on this case. Lindner thought that in light of the discovery and motions, they could possibly [argued?] mid to late November and the “in limine” motions in December. However, getting a death qualified jury in December is near impossible. Judge Ohta agrees. It’s impossible.  Lindner tells the court he could be ready by the first week in January.

The motions that have to be litigated are discussed. Judge Ohta asks, “How much time will those require?” Counsel states, at least two weeks. One will require a 402 hearing.

The reason Judge Ohta asks, is it could take him some time, to review the motions and be comfortable with the law on the issues.

Lindner outlines for the court the motions he plans to file. One motion is to sever the Ashley Ellerin case from the other victims. The defense position is to sever Ellerin because it’s a weak case, underpinned by Bruno and Murphy. Lindner explains his argument in brief. The court will have to review the relevant transcripts before ruling.

The second defense motion is 352. Judge Johnson, in the prelim found 1101b [evidence], that common plan, scheme ... identity was linked to Tricia Paccacio. We will be making a motion that this alleged murder .. to bring it into this case as an uncharged act, ... would violate his due process of law.  Lindner adds something about this relating to suspects Bruno and Ellerin, because Murphy stands on it’s own.

The third motion is a scientific evidence motion. If the court decides Paccacio is to be admitted, then the defense needs the samples sent to their own labs for testing.

DDA Akemon informs the court that all evidence on Piccacio is held in Illinois. He [has?] spoken to Illinois about getting the evidence sent here. They need to litigate this 1101b motion before [other motions] because of the time pressure and how long it will take to get that evidence in California for the defense to test.

Judge Ohta informs counsel that once he starts his four-month death case [Johnson & Allen] he won’t be doing anything else but that case. He also informs counsel that he is not available in July or August. It’s my understanding that Judge Ohta has been asked to sit on the California Courts of Appeals for two months.

Judge Ohta tells parties, that the law requires that 1101b motions need to be held before the trial court, unless both counsel waive that requirement. [It doesn't appear  counsel are not agreeable to that.]

The idea would be that after the [Johnson & Allen] case, the court immediately take up the 1101b motion, then handle the other motions. Lindner states he has a number of Kelly Frye motions. Lindner adds, that in respect to Mr. Gargiulo’s statements,[during] the Perkin’s motion. There is a separate issue in Perkin’s, whether the defendant’s statement were voluntary as to his [Sixth?] amendment rights. Lindner will need to reach back to [that?] incarceration and whether it related to coercion.

Judge Ohta comments, “Listening to you and seeing that there is no way that all of this can be done in 60 days.” The court asks if all the parties are available on Monday [June 15]. All counsel are available on Monday. The reason Judge Ohta says he says that, is the 1382, relates to a general time waiver, [paragraph 2 sub a]. When the defendant enters a general waiver, they set forth a [continued? conditional?] trial date. If the defendant later withdrawals .... So it requires a proper notice to all parties.

Judge Ohat states, “Mr. Gargiulo said this is what he wishes to do.”  Lindner asks the court if he can have the weekend to prepare his motion to go beyond the 60 days.

Judge Ohta replies, “First, he’s made his request. I’ve not withdrawn the general time waiver.” Judge Ohta asks Gargiulo, “Do you have any questions on the record, regarding future dates that might happen?”

Gargiulo tells the court, “I object to all of that. I want to go to trial in 60 days ... [there’s more that I miss].”

Judge Ohta responds, “So you do not want to be reasonable?” Gargiulo responds, "I'm being as reasonable as the law allows me to be.” [It’s not in my notes, but I believe at some point, Gargiulo tells the court that he’s read the law.]

Judge Ohta tells Gargiulo that, “... you need to read original law sources and not secondary sources [interpreting the law]. ... In any event, I’m giving you the weekend to think about this ... then we will uptake that matter on that date. .. On that date and move forward from there.

Mr. Lindner asks the court if it’s possible for the court reporter to email a copy of [today’s] transcript to the defense and people. Judge Ohta asks the parties to give their email and he will see if she’s able to do that.

DDA Akemon brings up to the court the logistics of getting the DNA from Illinois. It could take up to 90 days. He asks if the defense is using an expert, and possibly on Monday, address who the defense expert might be.

They may have to go forward with testing, before the motion is even decided. Judge Ohta understands the logic.  Lindner brings up the chain of custody for the DNA and the people’s need to show chain of custody.  They will work it out. Defense will need to go to Dept. 123 for the added financial aspects of the case, to appoint a lab. Lindner states that they have an expert. 

Judge Ohta addresses Gargiulo, “Mr. Gargiulo, It’s okay that you are imposing your will. You have right and a right to [?] trial ... but ... you’re forcing everyone to go above and beyond....”

Gargiulo states he’s pushing his trial and all of the [delays?] ... I believe Judge Ohta warns him about an issue, [consequences?] of pushing this forward so quickly. [You cant’] then later turn around and then ask for a continuance.]



Gargiulo replies, “I’m not worried about that. I’ve been ready for trial since the prelim.” He mentions something about the [court system?] playing games.

Judge Ohta replies, “I don’t play games and I’m not saying you are. I’m just warning you there are consequences....”

Mr. Lindner tells the court,  now that Gargiulo made his request, he is having to work on his 1382 motion and not the case. “He is in effect preventing me from preparing for trial," Lindner explains.

I believe DDA Dameron states the 995 motion is less pressing; the 1101b motion is more pressing.

And that’s it until June 15.