2.5 Million Settlement Reached With Children of Woman Assaulted by LAPD Officer Mary O'Callaghan

October 15, 2015
Kate Mather of the Los Angeles Times reported yesterday:

The Los Angeles City Council unanimously agreed Wednesday to pay $2.5 million to settle a lawsuit with the children of a woman who was kicked in the crotch by an LAPD police officer and later died, resulting in a criminal conviction for the officer.

 The full article can be read HERE.

LAPD Officer Mary O'Callaghan was found guilty of assault under color of authority on June 5. She was sentenced on July 23, 2015.

I attended the sentencing hearing. Judge Sam Ohta denied a probation recommendation from the DA's Office. O'Callaghan was sentenced to three years with 20 months suspended. Because of AB109 realignment, the remainder of O'Callaghan's sentence was served in LA County jail.

Mary O'Callaghan cried during her sentencing and gave a tearful apology to Mrs. Thomas, Alesia's mother. O'Callaghan said:

"I never had the opportunity to say I'm sorry. ... I didn't have the opportunity until now. ... Mother to mother, I'm extremely sorry for the loss of your daughter."

O'Callaghan starts to break down, and then continues. "There's not a day [that?] goes by that I don't think of her. I pray for her every day... I pray for her children ... that her children and you and other family members, and how much [she?] loved and  [to tell them? please?] forgive her. .... I'm sorry."

After O'Callaghan's apology, Mrs. Thomas reached out her arms to Mary and asked the court if she could hug her.

Mary O'Callighan Sentencing, Michael Gargiulo #31 & Grim Sleeper Update

UPDATE 8/27: spelling, clarity, accuracy
July 23, 2015
I’m on the 9th floor of the downtown Criminal Justice Center, sitting on a bench across from Dept. 108. There is a Gargiulo hearing and Mary O’Callaghan, the LAPD officer recently convicted of assault under color of authority will be sentenced today.


8:13 AM

There are quite a few people at this end of the hall. I observe first time greetings with many of the arriving people. It’s a good bet that the people are supporters of LAPD Officer Mary O’Callaghan.

Looking up, I see Gargiulo defense investigator Chris Nicely sitting on a bench down towards the center of the hall. He appears to be looking over his calendar. More supporters of Mary O'Callaghan have arrived. There are friendly greetings and hugs being exchanged.  I count at least fifteen people now.

Also today, DDA Beth Silverman is in jury selection in Dept. 106 on an old murder case. I’m hoping I get to say hello in the hall or later, if there's time to drop in on Dept. 106.

8:24 AM
DDA Shannon Presby arrives for the O’Callaghan sentencing. A reporter steps in front of him to speak to him.

Some of the people in the crowd of O’Callaghan supporters appear to be police officers.  More suited gentlemen arrive and speak to DDA Presby.  Mr. Ricco, O’Callaghan’s defense attorney arrives. H greets Presby and they chat. A female reporter identifies herself and approaches DDA Presby, telling him she emailed him.

DDA Dan Akemon arrives and checks the door. The hallway is so full that he goes down to the other end of the hall to speak to his investigator, Detective Small and another woman.

Mary O'Callaghan Sentencing
8:50 AM

Inside Department 108. Mary Hearns, Department Head for the Superior Court’s Public Information Office, (PIO) informs the media that the are allowed to use their laptops, as long as the keystrokes are not heard.

I believe I recognize DDA Jamie Garrison in the well. I’m pretty sure it’s DDA Garrison. During the people’s case in the Stephanie Lazarus trial, Garrison channeled the preliminary hearing testimony of LA County Coroner’s Investigator Lloyd Mahaney, who collected the bite mark swab off of Sherri Rasmussen’s body.

Chris Nicely leaves Dept. 108. There’s lots of bustle in the well and a bit in the gallery. The gallery is almost full. News media reporters set up their cameras in the jury box. Judge Ohta is here. He's wearing a white shirt and a light blue patterned tie. He will officiate the sentencing since he was the judge of record on the trial.

Jane Robison from the DA’s office is here and is able to find a seat in the gallery. I can usually type very softly. I hope I can type soft enough for Judge Ohta. DDA Presby speaks to Jane Robison for a moment. Judge Ohta asks for DDA Presby and Mr. Ricco to approach. It's for just a moment and then Judge Ohta leaves the bench.

PIO Mary Hearn is now in the jury box with the cameramen. Last minute stragglers arrive. Judge Ohta comes out to the bench for a moment. More last minute people arrive.

DDA Joshua Ritter, who last week was on the verge of closing arguments in his case, arrives with some staff.  Mary O’Callaghan is brought out. She is in a blue jump suit. She’s wearing the white long-johns type shirt underneath.



8:59AM
Rico puts his arm on the back of Mary’s chair. A few moments later her rubs her back for comfort. Mary appears to lean in closer to her attorney.

Detective Small leaves the courtroom. There are quite a few deputies in the courtroom. There are three in the well. Five deputy sheriff’s by the courtroom door. More sheriffs go to the back of the courtroom on the far left.


9:02 AM
Judge Ohta takes the bench.

Judge Ohta addresses the gallery. “I expect an anticipate that all of you will accord one another. [with] civility and dignity that these proceedings require. ... There shall be no emotional outburst or display of physical gestures or the like. ... If anyone acts out in that manner, you will be escorted from the courtroom.”

Judge Ohta calls the case. People v O’Callaghan and asks the parties to state their appearances. Robert Ricco for Ms. Callaghan. DDA Presby for the people.

The court continues: "The matter before the court [is] of sentencing. ... I understand that on the people's side there may be people who would like to address the court?"

First person Sandra Thomas, Alesia Thomas‘ mother.

"You honor. I‘m Sandra Thomas, Alesia’s mother. I want to thank God that.... I am so sorry all of this occurred. It was ... just happened out of nowhere. What I thought about a lot .. the only time when Alesia was placed in the back seat of the police car ... At ... once she was in the back seat, and she was saying I can’t breathe, Ms. O’Callaghan decided to take a cigarette smoke. After that, when she returned ..."

"I was wondering .... As a medical assistant, I’ve studied a lot of medicine. I love it with a passion. I’ve learned CPR. And I was wondering why would she leave when she can’t breathe. [Why did she] stay away so long and come back? Why didn’t she do some [CPR?]? Why not offer compression and a couple of breaths? Why was that chosen [cigarette] for her to do first?"

"To me, it appeared she was expecting that it [would] happen. She wanted that to happen. That’s what it looked like to me. Why didn’t she give her compressions and a couple of breaths if she was unconscious? Unfortunately, that is not what happened."

"I would love to forgive her, but I have to ask God to help me learn to forgive her ... how to learn to forgive. I have love for everyone in this world. When you work in the medical field..." 

Ms. Thomas’ voice starts to break, and I’m affected by hearing her voice falter.

"You have to have compassion for people. You have to want them to get better in their [health? heart?]. I help people of all ethnicity, it doesn’t matter. You don’t hurt a human being. When you are old, you are like a baby again. And it doesn’t matter what color you are. And if I was a police officer and she was a heavy girl .... And I would have to try to talk to her. [And ask her] What happened to you? Why did you get yourself in this position? I would allow her to give her [opinion?] ... ask questions and we could have moved forward with letting her to speak to someone ... to speak to a psychiatrist."

"And my grand-kids, they are without a mother now. And after, Ms. O’Callaghan ... speaks about how her son successfully completed [OS?] Academy. Now how does that make me feel? It was terrible. There was no feeling there at all."

"And that’s another reason I’m having trouble learning how to forgive her ...  Nobody can change what happened. That’s [what I have] to say today. ... Phillip Washington is my grandson. Oh, he’s here."

Judge Ohta addresses Mrs. Thomas. “I’m sorry for the loss of your daughter.”

DDA Presby introduces Mr. Washington.  He identifies himself as the father of Alesia’s older [son? daughter?]. I am having difficulty hearing him.

"Most difficult time in my life, having to explain to her younger daughter, [that her mother was gone]  about how difficult to speak in court ... then difficult time above ...

Mary O'Callaghan was not a professional ... She was a regular citizen who chose the noble process and then [betrayed?] her oath. ... And when this jury convicted Mary O'Callaghan, then they began to right that wrong. ... When her children will ask, what were her last moments like ... she was beaten, hog tied and treated like an animal. .... I don't know how to explain to them that she asked for help and no one listened [from?] them.  ... I don't know how to explain to them that her last words were, 'I can't breathe.'

Mr. Washington starts to break up. He says, "I'm sorry." He can't continue. Judge Ohta tells Mr. Washington, "We can wait for you, sir."

Mr. Washington continues.

When Alicia passed, her life taken, most importantly her children's lives, her children suffer the loss of their mother every day. I teach [them? her daughter?] that anger is not the way, that hate is not the way. and I've taught [them?] that the way is to forgive, but to also seek justice. .... I ask your honor to right this wrong. Let her children believe in the system to believe in justice.

Defense attorney Rico turns around in his seat to watch Mr. Washington speak.

Washington requests that O'Callaghan serve the three [year?] term.

Najee Ali (sp?) speaks on behalf of the family. 

He thanks Judge Ohta for permission to address the court. He thanks DDA Presby for bringing Ms. O'Callaghan to justice. ... It had a big impact on her family and her two children who will never see their mother again. ... They continue to mourn and miss their mother. ... There was nothing more important to her [Thomas) than her children and their safety. ... That's why she dropped them off [at] what she knew was a safe [haven?]. ... She should not have died in the back of a police [officer's?] car. ...  When she was telling [Ms.] O'Callaghan that she couldn't breathe, she responded with taunts and threats. ... She said to her, "Bitch, I'll break your arm." [She was] seen on video tape, assaulting her. ... Her last dying words as we saw her lose consciousness was, "I can't breathe." ... Black lives matter. ... Her life matters, to her children and our community. O'Callaghan has not shown any remorse for her crime. She has not apologized to the family. She could have done this through her lawyer. ... We ask that she receive the maximum sentence in state prison. ... Unfortunately, we see our citizens dying in police custody. ... The family is not seeking revenge. ... We've always sought justice for Alesia. ... Black lives matter; all lives matter.

That ends the victim impact statements.

The court asks, "Mr. Ricco, is there a statement or allocution that your client would like to make?"

Mary O'Callaghan stands up and turns to address Alesia Thomas' mother. "I never had the opportunity to say I'm sorry. ... I didn't have the opportunity until [now?]. ... Mother to mother, I'm extremely sorry for the loss of your daughter."

O'Callaghan starts to break down, and then continues. "There's not a day [that?] goes by that I don't think of her. I pray for her every day... I pray for her children ... that her children and you and other family members, and how much [she?] loved and  [to tell them? please?] forgive her. .... I'm sorry."

Alesia Thomas' mother appears moved by O'Callaghan's emotional remorse statement. Thomas' mother holds out her arms to O'Callaghan and asks the court if she can hug O'Callaghan.

The court denies the request. "No. It cannot be done," Judge Ohta answers. The court then moves onto the question of sentence. Both parties have submitted sentencing memorandums. "Mr. Presby, would you like to argue your point?" "Yes, your honor," DDA Presby replies.

DDA Presby first thanks the jury in this matter for their attention. He also thanks the court for providing both sides for a fair trial. In some cases, sentence is simply applying a predesignated [tier?], it's almost mechanical. ... But in cases like these, it's not a simple matter of addition. It requires [a review?] of the nuances of the case.

At every state in this process, the DA's office attempted to consider all the facts, to receive a just sentence. The prosecution opposes a reduction of the case to a misdemeanor. She is responsible for her actions. [The defense presented?] that Ms. Thomas was resisting and a combative defendant. "Those arguments were categorically rejected by the jury."

[An] effort to shift responsibility from Ms. O'Callaghan should be rejected by the court as it was rejected by the jury. ... Ms. O'Callaghan abused a position of trust. ... Police officers are supposed to [restrict? restrain?] individuals. This this great power comes great responsibility. ... the duty is not to be perfect, ... but to act reasonably under the circumstances of a particular case. ... When she goes by she is violating her duty. ... By failing to listen to Ms. Thomas, that she could not breathe, and could not comply to Ms. O'Callaghan's demands ... she compounded this by using gratuitous insults and kicking the victim. ... Her use of force was a violation of her position of trust. ... As a restrained prisoner, she was totally dependent of Ms. O'Callaghan. ... "Ms. Thomas needed help but all she got was violence." Instead of determining why she couldn't breathe, she decided to insult, shove and kick the victim. ... If the DA’s office thought that Ms O’Callagian casued Ms. Thomas death, we would have brought charges. ... After considering all the facts of the case along with Ms. O'Callaghan's history, the DA's office opposes reduction to a misdemeanor. ... Recommendation to spend 180 days in jail [and probation].

When defense attorney Rico stands up to speak, he first turns and addresses Alesia's mother. He then thanks to court for a fair trial. He then talks about O'Callaghan's service. [She has] honorably served this country and the city for so many years. ... She was in desert storm. Eighteen years on the LAPD. [She] lived a life of service, one that has been productive and one that is deserving of a probationary sentence. ... Ms. O'Callaghan went above and beyond serving her community of south east [Los Angeles]. ...

Some things that don't get in the media. [She? They?] were instrumental in founding "Operation Progress," which has led to 15 graduates from South LA, raising funds for inner city youth; a three million foundation. ... Ms. O'Callaghan was instrumental for this and this is what she did off duty and not on duty. This is the Mary that is deserving of a probation sentence. ... [She has] three children. ... [Her] 12 year old son, resides in Vermont. ... [As a stepmother] she mentored three step children. ... They don't call her Mary, they call her Mom.

In regards to the mitigating factors, that the court may consider [under code #], every one of the mitigating factors apply to officer O'Callaghan. ... No prior criminal history, not even an arrest in her  50 years. [She is] more than willing to comply with probation and restitution, participating [in an]  electronic monitoring program. She is able to comply with the terms of probation. She doesn’t have drug history or an alcohol problem; no mental issues.

[I would] also like to point out, she was placed on her own recognizance and made every one of her court proceedings; she flew cross country and made it on time. She has faced consequences. She lost her job, her medical insurance. She lost her job with Orange County as a dispatcher. Her source of livelihood and earning power will be severely affected by the verdict.

Ms. O'Callagain expressed her sorry and remorse. The court has been provided with 26 character letters from friends and family members who Mary had helped, to recent neighbors that Mary had recently met. Black neighbors. It was never about race. ... She has served. ... She is not a danger to the community or anyone. It is for those reason we are asking to reduce the felony to a misdemeanor sentence, [and] Ms. O'Callaghan to probation to time served.

Judge Ohta asks the people, "Mr. Presby, would you like to respond to any of that?"  DDA Presby replies, "No your honor. Submitted.

Judge Ohta addresses the courtroom.  "I got this case very late in the process. This was not a case that was assigned to me. ... One day I walked into my office and I heard I got this case assigned to me and both attorneys walked into my office the same day. ... 
I was told that it had to be a trial. There was no settlement. ... I wondered if there was real substation discussion to settle the case. There are consequences when one goes to trial. ... And in this case, she was convicted. We do not go backwards. We go forward. ... With that in mind, I will tell you what I think about this case. ... I received for the record that [there] were perspective views that were presented to the court. I read everything put in front of me. I read ever single one."

Jidge Ohta reads from letters, and then continues with his observations of the case.

Ms. Alesia Thomas, a mother, daughter, friend, suffered extreme loss of human dignity on the last moments of her life. ... If she [had] survived and lived, if they had properly observed [that] she needed medical attention is unknown. ... She was restrained, kicked and yelled at as she lay dying. She said she could not move and could not breathe. ... She was told her arms would be broken if she did not comply. ... I see the plight of Ms. Thomas' two children, who must one day confront the circumstances of how their mother passed from this life. I have absorbed and processed all of this. ... This case is truly tragic from the stand point of those affected on both sides.

There are no winners here. I see grieving and suffering people here ... looking for a deep meaning way to understand this horrible incident. ... Justice in our system is based on two fundamental principals. ... The determination [of] guilt is ... by the people in our community ... Lay people who have no stake in this contest that we call jurors. .... Law enforcement, under our given structure, as chosen representatives, [derive?] their authority from the people they serve.

Jurors here as [assigned?] representatives have spoken. ... They took in the evidence and convicted the defendant of assault under color of authority. They have indicated the defendant has stepped beyond the scope of the authority given. ... The decision of sentence is under the sentencing analysis. ... Defendant Mary O'Callaghan comes before the court for [this?] sentencing.

On June 5, 2015, defendant Mary O'Callaghan was convicted of [the facts] underlying that occurred on July 22, 2012. The victim, Alesia Thomas, when charged with child abandonment.

Judge Ohta continues with his observations of the video, and then moves onto sentencing.

[I will] now analyze objectives of criminal sentencing in California. I state the rule verbatim.

O'Callaghan appears to be emotional while sitting at the defense table. I think she could be crying, but I can't see her. Her back is to me.  Judge Ohta reads from the sentencing guidelines. I do not transcribe everything he reads.

... punishing the defendant, deferring others from criminal conduct by underpinning its consequences. .. The DA recommended probation. ... Is she suitable for probation .... No indication, until today, there was no indication for remorse. Had been told until today, that there had to be a trial. [She] ... failed to see Ms. Thomas as a woman in distress who needed medical help. ... The nature of this crime is more serious. .... Instead of accurately [identifying] her physical condition as someone who could not move and could not breathe, she misread the situation ... unwillingness .... and used excessive force against someone who could not comply.

Judge Ohta denies probation. He moves onto the judgement to be imposed.  The court shall consider the sentencing rules. ... There is some misconception in this room that somehow the defendant can be sent to prison. She cannot. ... [This is] not a crime that she can be submitted to prison. ... That's because of realignment .... changed sentences to county jail. ... [?] Not exceeding one year, of by both that fine and imprisonment. ... A felony punished by this subdivision shall be punished by a term of 16 months or 2 or 3 years.

Judge Ohta reads more of the sentencing guidelines, and the new sentencing procedures. "It's called applied sentence." ... The portion of a defendant's sentence that is suspended shall be known as mandatory supervision, shall commence upon release [from] custody.  ... Thus, I order not to apply applied sentence ... The trial court must make [explicit?] finding in the interests of justice.

I note that it's all a bit confusing to follow because of AB109, realignment.

Judge Ohta cites a prior case, People v. Sandaval (sp?) that he relies on for sentencing in this case.

"She will get a split sentence. ... She will be sentenced to three years, however, [she is] unlikely ever to pose a danger to the community. ... Her service in the military is to her credit. ... The many letters of support from the community. Suspend the execution of 20 months. The first 16 [months] to be served in custody.

Judge Ohta then talks about how this case affected him and how he pondered the decision of sentencing. "I’ve spent several days thinking about this and I’ve not really slept. This has been very troubling to me. ... I've taken this job seriously, taking into considering everything that's been in front of me."

Probation is denied. Count one, select the high term of three years. ... Twenty months, concluding portion of the term, ... the execution of that is suspended. The defendant is ordered to pay $300.00 restitution fine.

There are other court costs imposed on O'Callaghan.  She is ordered to give blood, saliva and fingerprints.

A couple of things to the defendant. Under realignment, there is no parole. When you finish this sentence, there will be no one for you to answer to. You have the absolute right to appeal. ...

The deadline for the filing of her appeal is outlined. She must file within 50 days of today's date.

Judge Ohta goes into more detail concerning an appeal and her rights to an attorney, rights to copies of any transcripts needed to effect her appeal. O'Callaghan replies "Yes, regarding understanding her rights to appeal.

Judge Ohta states, "That concludes all of the issues the court needs to resolve."

There's nothing else from DDA Presby and nothing from defense attorney Rico. The defendant is remanded. Judge Ohta states, "That concludes the sentencing hearing." And then he adds, "Oh. Credits. ... 49 actual, plus 49 for 90 days."

O'Callaghan is taken back into custody.  The gallery starts to leave the courtroom. As Judge Ohta leaves the bench, he's already out of his robes. He then asks for DDA Presby and Mr. Rico to stick around. And that's it.

LA Times story on O'Callaghan's sentencing
NBC News Report (with video)
Post by Jasmyne Cannick

Previous Gargiulo post can be found HERE.

Michael Thomas Gargiulo, Pretrial Hearing 31
10:08 AM
LAPD Detective Tom Small, DDA Daniel Akemon and DDA Garrett Dameron enter Dept. 108.  A few moments later, defense attorney Charles Lindner and his son, paralegal Abe Lindner arrive.

Lindner greets Judge Ohta, who is at his clerk's desk. "Glad to have you back." Judge Ohta replies, "I'm not back." Judge Ohta was here only for the O'Callaghan sentencing. He will not preside over Gargiulo's hearing.

10:13 AM
The jury from a current case in trial files in. Judge Sortino arrives. He's wearing a blue and white pin-stripe shirt.

O'Callaghan's defense attorney Rico, comes out from the custody area. DDA Presby and Rico chat with Judge Ohta at the clerk's counter.

Judge Sortino is now in his robe and takes the bench.

Another case, a female defendant is heard first. She is out of custody. There is a motion for release on file that's pending appeal. Her sentence is to be served in county, but it appears she is in some kind of out of custody program. She is asking for bail. If she is able to have bail, then the program she is in will allow her child to be with her. A Marsden motion was denied and the defendant wants to go Faretta. This case is put on hold for the moment.

The court goes off the record.

10:32 AM
Defense attorney Lindner and Judge Sortino chat off the record and get up to date on where things stand.  Apparently, defense attorney Dale Rubin (who will be handling the penalty phase of the trial), went to where Gargiulo is currently being housed at the court. My guess is one of the custody floors.

I believe Judge Sortino goes over the defense 1050 motion again. At the counsel table, Lindner and DDA Akemon chat. Now, DDA's Akemon and Dameron go over a document at the clerk's desk with paralegal Abe.

Judge Sortino is now having a conversation with his court reporter. There are two different conversations going on at once in the well and I can't track either one.

10:46 AM
Buzz!  Buzz!  The current case in trial has a question.

Now, another case is before the court, trying to schedule a sentencing date for two defendants.
DDA Phillip Marshall (sp?) is addressing Judge Sortino.. There are extensive victim's family members. 20 plus people from out of state want to be here for the sentencing. The DA continues updating the court. Verdicts were reached in January 2014. The defendants had months and months [to prepare their motions for new trial] but now they need another date set. The victim's families spent all this money [on air fare and they can't get a refund]. Judge Sortino asks the people if they could look into seeing if the victim's fund could be utilized to address this situation.

10:51AM
Buzz!  Buzz!  Judge Sortino asks his clerk, "Do they have question or do they want to go on break?" The clerk replies, "I'll go check right now."

10:58 AM
Buzz! Buzz! Buzz!  The case in trial jury has reached a verdict.

DDA's Akemon and Dameron are motioned into the hallway by Abe Lindner.

11:10 AM
People come and go inside the courtroom, getting ready for the verdict in the current case to be read.

DDA's Akemon and Dameron are now back inside Dept. 108.  Lots of other attorneys arrive and are milling about the well.  Defense attorney Dale Rubin is here.

Judge Sortino continues with DDA Marshall and the two defendants who still need to be sentenced.  DDA Marshall continues. Two defendants, convicted over a year ago. One defendant has been pro per over a year. The second defendant has been pro per since November [2014].  I'm not sure if the court or DDA Marshall states, a 60 day drop date on the two pro per defendants.  The defendant's are taken back into custody.

Judge Sortino decides to go back to the female defendant who, under Faretta, is representing herself. Her motion for bail is denied.

11:33 AM
Judge Sortino calls for the jury to be brought out so their verdict can be read in the case in trial.  Judge Sortino gets the verdict forms and goes on the record in that case. There are two defendants.  After the verdicts are read and the courtroom starts to empty a bit, we shift to Gargiulo.

The court and counsel talk off the record about the Gargiulo case. Defense attorney Rubin tells the court that he spoke to Gargiulo this morning. "I told him I would see him in a few [minutes]. ... That was two hours ago. ... [It] appears he's going to waive time."

It looks like defense attorney Dale Rubin's conversation with the defendant did the trick.

It's my understanding that back in early 2012, before Gargiulo went pro per, he tried to get the court to appoint another attorney for the guilt phase. I believe Gargiulo wanted Rubin (who was assigned to the penalty phase) but the courts would not agree to assign new counsel. Because of that, Gargiulo went pro per.

Counsel and the court set a tentative trial date of January 8, 2016. [If Gargiulo does agree to waive time when the case is called today] ... they will possibly set the case at zero of 120 today, and make the January 8 date, zero of ten and a return date of September 9.  Currently, the case is 30 of 60. The last date to go to trial under the current clock is August 14. All of this discussion is off the record.

It is now getting very close to the lunch hour. Judge Sortino addresses counsel. "When I came on the bench, I was told not to go overtime at lunch and to stop at 4:15 pm, because the bailiff's go on over-time at 4:30 PM.   Judge Sortino continues to talk with Lindner about his first time on the bench.

My stomach is major growling. I'm wondering if the court will call the lunch hour and the hearing won't happen until court resumes at 1:30 pm.

Judge Sortino asks Mr. Lindner, "January 8, is that a realistic date?" Lindner replies, "Yes."

The people ask, "Well, let's hear from Mr. Gargiulo."

Judge Sortino asks Rubin, "you're formally back on the case?  Mr. Rubin replies, Well, formally, I'm part time.

We are going to continue into the lunch hour. I'm relieved.

12:06 PM
Gargiulo is inside Dept. 108 He's wearing his black horn-rimmed glasses. Defense attorney Rubin speaks to him. Judge Sortino asks the parties to state their appearances. DDA's Dameron and Akemon, Charles Lindner and Dale Rubin.

Rubin informs the court that he spoke to Mr. Gargiulo. "He is agreeable to put the case over to January 8 and set trial. ... He indicates to me that he will waive time. .... He would also like to put something on the record, but counsel [Lindner and Rubin] haven't see it yet."

Judge Sortino replies, "First things first." He addresses Gargiulo. "You have the right to go to trial August 14. Do you give up that right?"  Gargiulo replies, "Yes."

Mr. Rubin continues. He has something he wants to put on the record your honor."  Judge Sortino cautions Gargiulo. "What I can tell you ... is it's not a good idea to put on the record unless your attorney has seen it first."  Judge Sortino continues with his caution. He tells Gargiulo that there is a record. the court report takes everything down and the DA's have access to it.

The court sets a return date of September 9.

Judge Sortino continues to advise Gargiulo. "Discuss with Mr. Lindner what you want to tell the court. In that time frame, I recommend you speak to Mr. Lindner and Mr. Rubin and at that time. ...
When you come back on the 9th ... we'll address it."  Judge Sortino asks the people if they have anything to discuss.

DDA Akemon agrees with the court. There is the pending DNA issue in Chicago and the pending 1101(b) motion. The people want to resolve those issues sooner rather than later. They want to raise that now, so it doesn't cause a delay.

The court sets a trial date of January 8, 2016, with the case at zero of ten on that date.  They will return on September 9 for pretrial status.

DDA Akemon informs the court that they turned over to the defense new discovery today. Pages 29,669 to 30,412.  Gargiulo is taken back into the custody area. And that's it for Gargiulo.

The next post on the Gargilo case can be found HERE.

Lonnie David Franklin, Jr., aka The Grim Sleeper: Update
Pretrial Hearings August 11 & August 17
The prior post on this Franklin case can be found HERE.

The Franklin case is in Dept. 109, Judge Kathleen Kennedy's courtroom.  Franklin is charged with 10 counts of murder and one count of attempted murder. Prosecutors are seeking the death penalty.

Back in May of this year, I learned that the Franklin case, after many delays, had a trial date set for September 9, 2015. It is estimated the trial will take eight weeks. At that time I thought I could fit the Franklin case into my schedule.  I attended a pretrial hearing for the case in June 2015, and then became swamped with personal responsibilities.

I had hoped to attend the pretrial hearing on August 11, but I had caught Mr. Sprocket's flu bug two weeks before and was still not well enough to sit in court. I was pretty much confined to the sofa during that time. It is a shame that I missed that hearing because there were no media reports about what had happened. Court sources indicated that, with less than a month before the scheduled start of the trial, defense attorney Seymour Amster turned over to the prosecution 142 defense witness names. I can just imagine how explosive it must have been in court that day. The court took the case off calendar and the next pretrial hearing was set for August 17.

Unfortunately, I was still coughing and did not make the hearing on the 17. However, the mainstream media did report on the hearing.

The first news I saw on the August 17 hearing was a tweet by Los Angeles Times reporter Brittny Mejia:

I wasn't surprised by the news that the prosecution and defense were not getting along. Back in July 2012, I attended a pretrial hearing in the Franklin case where there was some back and forth bickering between defense attorney Seymour Amster and DDA Beth Silverman. DDA Silverman is co-prosecuting Franklin with DDA Marguerite Rizzo. I've been told DDA Rizzo is the department's "go to" person on anything DNA related. Both of these talented women are top performer's in the DA's office.

After the arguments between counsel became heated, Judge Kennedy finally stepped in and said,

"You're acting like children! ... I'm ordering you to go upstairs and work this out. ... I don't want this to be a personality driven case. ... Leave your ego at the door!'

In most of the cases I've covered in Los Angeles County, the prosecutor and defense teams are cordial and get along quite well inside and out of court. During the Ka Pasasouk and Barnes and Bolden preliminary hearings, I observed DDA Daniel Akemon get along quite well with all the defense attorneys.

In the James Fayed trial, former DDA's Alan Jackson and Eric Harmon were prosecuting and attorney Mark Werksman defended Fayed in the guilt phase and his cocounsel Steve Meister represented Fayed in the penalty phase. Everyone was cordial and quite friendly with each other.  A couple years later, Jackson joined forces with Werksman as a named partner.

The mainstream media is spread pretty thin when it comes to covering the Los Angeles County Superior Court, the largest county court system in the nation. Reporters rarely gets to observe these occasional blow-ups between counsel and even rarer still when the court comments on the behavior or has to rein in the tension.

That was the case back in March 2009 during the second Phil Spector trial. Former DDA Alan Jackson and defense attorney Doron Weinberg were having a battle of accusations after prosecution rebuttal witness and In Sessions TV anchor Lisa Bloom testified. Defense attorney Weinberg was accusing the prosecution of a discovery violation. After the bitter back and forth, Judge Larry Fidler made the following comment:

"It's clear that you can't stand each other. [...] I don't see any discovery violation. [...] Irregardless Mr. Weinberg, I saw your cross. You were not prejudiced in any way."

I also have a memory during that trial of Judge Fidler telling counsel that he appreciated the parties did not let the jury see their animosity towards each other during the trial.

At the Franklin August 17 hearing, Judge Kennedy put the Franklin case back on calendar. The next pretrial hearing is August 31 and the new trial start date [for voir dire] is October 14.

People Magazine investigative reporter, Christine Pelisek, who first first broke the story of the Grim Sleeper at LA Weekly back in August 2008, has a synopsis of the two hearings I missed combined into one story.

August 17: LA Times Franklin Story

I have some personal responsibilities that will take me through the next month. I hope I'm completely over my lung issue by then. However, the delay in the Franklin case means there won't be a conflict with the Gargiulo hearing on September 9 or Cameron Brown's sentencing on September 18.

The next hearing in the Franklin case can be found HERE.

Stephanie Lazarus Criminal Appeal, Oral Arguments

 

Ronald Reagan State Office Building

300 S. Spring Street, Los Angeles, CA

UPDATE 6/6/19 edited for spelling
UPDATE 7:15 PM edited for grammar, spelling, clarity
June 11, 2015
When I arrive at the state building where the local appellate court is held, I stop at the security station to see if it’s possible to photograph the catwalks inside the atrium space. I've tried to describe this space before, but there's nothing like a photo to give readers a sense of what one is talking about. The building’s security manager is kind but says that because of “security” I cannot take photographs. I thank him for his time then head to the second floor cafeteria to get a bottle of water.

The courtroom is one floor up. I talked about the Ronald Reagan State Office Building back in April 2001, when I was here for the oral arguments in the Phil Spector appeal. The center of the entire building is an atrium space for the first four floors.  There are open catwalk bridges that crisscross back and forth for the second and third floors. On the ground floor are trees, huge murals and animal statues.

As I exit the cafeteria, I look up and there are Jayne and Michael Goldberg right outside the courtroom on a catwalk, one floor up. Jayne is giving me a big wave. I can see her smile.

Jayne comes down one floor to greet me and we take the stairs back up together. We both marvel at how beautiful the space is. To me, the atrium space is very serene and peaceful this early in the morning.

8:22 AM
The Rasmussen family arrive. Nels, Loretta, and their two daughters Connie and Teresa, are with them. Hugs are exchanged all around. Jayne tells everyone that her daughter Mollie is graduating from college in a few days with a degree in Film & Digital Media, with an emphasis on production. Her senior film is titled The Fifth Stage, and cover the topic of grief and the myth of closure. It will be screened Friday and will be up on VIMEO soon. Once it’s on the web, T&T will link to it.

8:43 AM
We’re inside the courtroom. There’s seating along the back wall facing the judges. There is also seating along the two side walls, but those are roped off at the moment. As the back area fills, the court staff open up additional seating areas.

Directly to my right are a group of five interns. An older woman arrives and asks me to move my bag so she can sit beside her interns.

The appeals court does not utilize court reporters. The proceedings are tape recorded. Attorneys start to arrive.

A few moments later I see Lazarus’ mother Carol, her sister Judi arrive. With them is a blond woman who I saw attend the trial.

A tall, sleek looking man with a long gray ponytail gets up from the well area and goes over to speak to Judi. This is Donald Tickle, Lazarus’ state appointed appellate attorney.

Sometime in early 2014 Lazarus moved from the Central Valley Women’s Facility in Chowchilla, California, to the California Institution for Women,  in Corona, CA. This location is much closer to her family members in Los Angeles.


Many people have asked me about Lazarus’ marriage. Lazarus’ husband filed for divorce Feb 13, 2013. The divorce is not finalized yet.


A large group of young people arrive. With them is a familiar female DDA face I’ve seen around the criminal court building. This group is directed to sit in the seats on the right side of the well of the court.

8:50 AM
Matthew McGough arrives. His hair is quite short. He must have gotten it cut since I last saw him.

Court staff continue to direct late arrivals to the remaining seats. It’s a mix of older suited men and young intern-looking men and women. Now, almost every seat in the gallery is taken. 

I note the carpeting and seats. It’s a medium green with hints of teal. More people continue to arrive.

9:03 AM
Detective Greg Stearns, and DDA Paul Nunez arrive. Stearns, along with his partner Dan Jaramillo, interviewed then arrested Lazarus; DDA Nunez co-prosecuted the case along with DDA Shannon Presby. I count only 3 or 4 empty seats left in the entire gallery.

The large bench has seats for four justices. The lower part of the bench is a matching tile/marble to the carpeting and seats with the top of the bench a polished dark wood.  The wall behind the justices is the same color of stone.  There is a dropped ceiling over the three gallery seating areas. Subdued light comes in through high mission style windows.

About a minute later, the four justices come out and take the bench. The Presiding Justice, Norman L. Epstein, states this is District Four. Justice Epstein informs the gallery he is not part of the three judge panel. The three judges consist of:

Associate Justice Thomas L. Willhite, Jr.
Associate Justice Nora M. Manalla
Associate Justice Audrey B. Collins 



This is not the same panel that heard the appeal of Nels & Loretta Rasmussen in their suit to sue the LAPD over the investigation into their daughter's death.

The panel will call the shorter time cases first. The panel calls People v. Lazarus. I’m relieved. We won’t have to wait here through several other cases.

Appellant attorney is Donald Tickle. The respondent for the state is Deputy Attorney General IV, Michael A. Katz.

Tickle starts off arguing the pre-accusation delay and which standard the defense argues should apply. The trial court ruled the federal standard should apply.  Tickle tells the panel the trial court said [California] Prop 8 didn’t have the independent force and effect.  Tickle argues that even negligent delay is sufficient.  The state, didn’t do any testing for 23 years after the crime. Funds were not allocated for a cold hit data base. Tickle cites Nelson to support his argument.

The justices respond that they don’t second guess a department [organization’s?] decisions on the allocation of funds, to get around to doing it [testing DNA]. One of the justices proposes, “Let’s say, if they did have the technology. ... she had 20 years of freedom. ... How is that prejudicial?”

Tickle comes back with arguing the profiler and mini filer testing. He also argues that the delay [in testing] must be for a valid police purpose. Tickle argues that several individuals identified her as a suspect after the crime. [I miss how this is relevant to Tickle’s argument.]

One justice asks, "Frankly Mr. Tickle, .... was any legitimate [explanation] ever offered at trial for the defendant’s DNA found on the victim at or near the time of death?" Tickle replies that the burden is not on the defense to show identity.

I believe the trial court answers that they balance the [?] for delay against the evidence. “What is the prejudice?” Tickle argues that the only evidence that there was a bite mark was on the envelope. The dentist could not say definitively it was a bite mark.

[I want to raise my hand and and say, What about the coroner’s testimony!!! She testified it was a bite mark! What about Jennifer Francis who testified  she saw a good deposit of amylase in the swabbed sample? Amylase is an enzyme and a component of saliva.]

One of the justices responds, “So what if it was a hickey? ... It’s her DNA.”

Tickle then goes on to argue that the defense position is, that it’s an error to match random match equivalency. The result is the jury will under estimate the possibility of another person.

I believe a justice asks, how does that get to the delay that causes prejudice. How does the delay, ... verses what the evidence proves?

Tickle brings up the fact that male DNA, not attributable to the victim’s husband was on the wall [of the stairs leading down to the garage]. There was male DNA on a blanket. The justices respond, “But none of that goes to explain your client’s DNA on the victim.”

Tickle argues something to the effect that she would have been injured in a fight and that not a single witness stated that Lazarus had any marks on her. Justice Manalla replies, “There were witnesses who testified about her physical superiority.”

Tickle and the justices go back and forth as to whether or not Lazarus could have had an accomplice Tickle argues that random match probability is not equivalent to no other person.  The justices come back that what Tickle is arguing is purely speculation.

I believe it’s Justice Manalla who states, “I get back to the common sense notion here. What is the prejudice here? ... That your client’s DNA was found in the struggle. ... You’re not arguing insufficiency, given what that argument was. Surely the jury was entitled to conclude she was there beyond a reasonable doubt.”

Tickle states the defense is not arguing insufficient evidence.  It’s whether there is a reasonable possibility that the jury [could have seen the evidence a different way?].

The court responds: It seems to me inescapable that your client was present at or near the time of the murder. It seems irrelevant that there was DNA on a stereo wire or elsewhere.  ... There were no chain of custody issues claimed at trial. Tickle states he is not claiming [chain of custody?] ..

[Given the state of the victim’s body .. the bite mark was at or near the time of death.]

The justices state, “It's not as if your client is claiming she showed up there, they had a fight, she bit her there and someone else killed her."

Tickle still argues that the expert could not say it was a bite mark. “The court is accepting the prosecution’s fallacy.  ... That goes to the weight of how you weight the evidence.” Tickle cites [Brown v. McDaniel?], a US Superior Court decision.

I believe the court responds that, [the case cited], that goes to the DNA did not belong to the defendant.

Tickle argues there is reason to believe there were male burglars in the neighborhood at the time of the incident. He also agues that no witness said that Lazarus remained obsessed with the victim’s husband after their last meeting.

A justice asks, “Is it your argument that irrespective of DNA percentages [the justice does mention the DNA numbers, the one in so many billions of random probability] .... the jury could conclude, find ...”

Tickle responds, “Could find reasonable doubt of the prosecution’s theory. ... Is there reason to believe there’s reasonable doubt? ... The 3rd party culpability evidence was not admitted. Tickle brings up the testimony of former FBI profiler Mark Safarik.

[Did Mr. Tickle just say, “If this is going the way I think....”?]

Tickle argues with the court that regarding the bite mark, no witness testified that wound was inflicted at the time of death.

Tickle’s time is up and Mr. Katz gets up to argue the respondent position.

Katz starts off by offering to counter Mr. Tickle’s last argument about the bite mark.

"Page three of the respondent’s brief. ... The coroner identified the pattern injury was consistent with a bite mark. ... The coroner looked under the wound and saw hemorrhage but no inflammation." She testified the wound occurred on or about the time of death.

Katz brings up the DNA under the fingernails.

He mentions [Bradley? Brown? v. McDaniel] and then moves onto the merits of pretrial delay and that the federal rules apply.  He argues the federal standard regarding the delay. 

I’m totally lost because up until this point, I’ve only had a copy of the appellant’s brief. I’ve not seen the respondent’s reply brief yet.



Lazarus’ brother Steven arrives.

Justice Willhite brings up the issue that the state standard was not statute, but legislation passed by the voters, to essentially over rule a series of [?] by the Superior Court ...

I become further lost in the legal complexities as the justices and Katz cite prior case law rulings.

The issue Katz and the justices are going back and forth on is the federal law verses the state Prop 8, and which applies. The justices do say that, at the end of the day, does it make a difference in this case? [Basically not really because where's the prejudice.]

Justice Manalla adds, “There is modest prejudice at best ... not just for delay. .. They [police] don’t have to test every case as soon as they get it.”

Katz is finished. The justices tell Tickle that even though he went over on his allotted time, they will allow him five minutes for rebuttal.

Tickle goes back to arguing the pre-accusation delay again.  He also mentions that there is equally substantive evidence of DNA of others that engaged in a violent struggle.  He backs of off the bit mark. Tickle is back to the burglary theory.

And that’s it. Arguments are over. We get up and make our way outside. 


I believe Mr. Katz greeted Nels and Loretta after the oral arguments.

Outside the courtroom on the third floor catwalk, DDA Nunez and Detective Stearns speak to the Rasmussen family, Jayne and Michael Goldberg, Matthew and myself. DDA Nunez tells the family that he did not hear anything that would cause him any alarm.

It appeared to me that the justices were leaning towards agreeing with the trial court decision.

Nunez tells Nels and Loretta that DDA Shannon Presby would have been here, however, he just finished a trial and obtained a conviction of an LAPD officer [Mary O'Callaghan], and he was taking a few days off.  Someone said that was good news. There is a short discussion of Presby's case. Detective Stearns responded, something to the effect of, the officer went a little bit overboard. This LA Times story gives the relevant details of what happened to Alesia Thomas.

Appeal: What Happens Next
We then talked about how long it will take for the justices to publish their opinion. It could be as quickly as a few weeks or it could take closer to 90 days.

If Lazarus’ appeal is denied, she could appeal to the California Supreme Court. However, that appeal isn’t paid for by the state. She would have to pay for that appeal herself. The other issue is, even if the appeal is submitted to the California Supreme Court, they are not obligated to review it. 

The California Supreme Court rejects cases all the time. I've been told that they don't review cases where the facts are similar to other cases they've already reviewed. Additionally, I've been told that appeals at that level can be political.

After the California Superior Court, Stephanie’s last recourse is a federal habeas corpus appeal. Those take a very long time; many years.

What About Parole
The next discussion was parole. Because the crime occurred in 1986, Lazarus serves her time under the sentencing laws in effect at that time. This means she gets good time credits for every day she served in county as well as in prison. Convicted murderers under today's sentencing guidelines must serve 85% of their sentence.

I remember right before the verdict, sources indicated to me that Lazarus' first opportunity at parole would be around 15 or 16 years after sentencing.

The next item discussed is what would happen when she is before the parole board. It would be a very rare thing indeed if Lazarus is granted parole the first time before the board. It's pretty much a given that won't happen. It's my personal opinion that she would probably have to serve at least the 27 years before the parole board would consider her for parole.

It's possible she would need to admit to the crime, however, that's not necessarily the case. There are instances of parole being granted without assuming responsibility. At this point, she is still pursuing an appeal. If she pursues an appeal to the California Supreme Court and then onto Federal Court, that might not be looked upon favorably by the parole board.

After all the questions are answered, everyone says their goodbyes and makes their way to the elevators. Looking over the catwalk as I start to head home, I see Lazarus’ family speaking to Mr. Tickle in the cafeteria.

I hope to have an audio file and transcript of the oral arguments uploaded soon.

Appellant Opening Brief
Respondent's Reply Brief
Appellant's Reply Brief

Mary O'Callahgan Trial - Verdict Reached

Friday June 5, 2015

Earlier Today
While I was waiting in the 9th floor hallway for a Marsden hearing in the Michael Gargiulo case to be over, a bailiff came out of Dept. 108 and asked people in the hallway where the counsel went to in the Mary O'Callaghan case. The bailiff then indicated that a verdict had been reached.

Someone in the hallway informed the bailiff that counsel left a few minutes ago.

DDA Shannon Presby prosecuted Mary O'Callaghan. Coincidentally, today is the sixth year anniversary of the interrogation/arrest of Stephanie Lazarus, that DDA Presby, along with DDA Paul Nunez also prosecuted.

I went inside the courtroom once the defense and DDA Presby had made it back to the 9th floor. Counsel went into chambers with Judge Ohta. I overhear that the verdict would be read at 2 PM.

I decide to stay and go over to the Federal Courthouse to grab a lunch.

1:25 PM
There's quite a bit of press here in the hallway.  I see Marisa Gerber from the LA Times. She gives me a little wave. Eric Leonard from KFI is here, along with local ABC reporter Carlos Granda. There's a long time camera operator that I recognize but I don't remember his name.

There's a young photographer with an LA Times lanyard around his neck.

I don't know at this time if I will be able to report live from the courtroom or not.

1:36 PM
More bailiffs arrive and enter Dept. 108.

1:42 AM
I'm inside Dept. 108.

I'll write up detailed notes later. I'll save this window open to report the verdict.

GUILTY of ASSAULT under color of authority. (Penal Code 149)

Note: The detailed notes of what happened in Dept. 108 right before the verdict was reached can be found in this post on Michael Gargiulo's Marsden Hearing. Scroll down to June 5. Sprocket

Mary O'Callaghan Trial - Day 2, Jury Selection

T&T full trial coverage can be found HERE.

LAPD Officer Mary O'Callaghan with her attorney Robert Rico

at a pretrial hearing. Photo courtesy KTLA website.

UPDATE 10:30 PM spelling of Judge Bork's name; I blame my dyslexia
UPDATE 8:37 PM spelling, clarity
UPDATE 6:26 PM see below

Thursday, February 26, 2015

10:25 AM

A few minutes after I arrived this morning it appears there has been a big wrench thrown into the trial. At this point, I can't say specifically what it is. The court has had two in camera discussions with attorneys.

As soon as the court goes on the record about what has happened I will give an update as soon as possible.

11:20 AM

Judge Bork apologizes to the jurors. There is an issue that the court is dealing with right now, and I’m asking for your patience. The court tells the jurors they are to return at 2 PM.

This happens sometimes, where the selection process is slowed.  The court then tells jurors about some places they may want to go. Judge Bork mentions Chinatown, Grand Central Market and Little Tokyo, where there are museums and several restaurants where they can get sushi. Judge Brock also mentions the Eli Broad museum west of the courthouse. He also encourages the jurors to walk the new Grand Park. He tells them that the park has a waterfall and Starbucks. “They’re worth seeing,” Judge Brock adds.  He asks them to accept his apologies for the delay and to, “Roll with it. ... Return at 2pm today.”

One juror is asked to stay behind. This juror is excused for just cause.

Once all jurors had left the courtroom, Judge Bork goes on the record. “Counsel approached [this morning]. Mr. Presby brought to the court’s attention that he was notified about other possible evidence out there, if indeed it exists, may be relevant.” The court then tells counsel he will ask them to make a brief record. “Tell me what [it is] you can that’s out there at 1:30pm.  ... What is out there so I can consider if there is good cause to continue or not. ... It’s [hard?] if you know something is out there, as to what it is or how extensive it is in the absence of that evidence. ... Get out there as promptly as you can, find out as much as you can and report back to me at 1:30pm.”

The court then tells DDA Presby to make his record. 

(I have decided at this point, not to mention any officer’s names that were mentioned in court until a decision has been made by the court about this potential new evidence. Sprocket)

DDA Presby states he was approached by Sgt. “A” assigned to a division within LAPD that prosecutes, administrative actions against police officers. Sgt. A advised DDA Presby that there had been a Board of Rights hearing regarding another officer, Officer B (related to the July 22, 2012 event). During the course of the incident, Officer B testified at a Board of Rights hearing that he advised the defendant, Ms. O’Callaghan, after there had been some application of force, words to the effect of, “Stop it, that’s enough, or cut it out.”

Officer B testified he told Ms. O’Callaghan that on the evening of the event. The criminal investigation discovery into the death, by the Force Investigation Division is a separate department. In the criminal investigation transcribed interview of Officer B, those questions were not asked and there were no statements. Sgt. A also told Mr. Presby that another officer, Officer C, testified at another Board of Rights hearing that he heard Officer B say, “Stop it; cut it out.”

DDA Presby tells the court that as soon as he heard this, he directed his IO, Mr. Stone to conduct an interview [with?] about [this testimony?] in front of the Board of Rights. DDA Presby also asked that Sgt. A get those transcripts from the Board of Rights hearings.

After DDA Presby gave those instructions to Mr. Stone and Sgt. A, he saw Mr. Rico in the hallway and informed him of what he just discovered and then brought it to the courts attention.
Sgt. A., who is the person who has access to that material [Board of Rights transcripts] he is attempting to obtain the report of the transcripts of Officer B and Officer C’s testimony, and preparing some kind of statement form with respect to the content of that material or the circumstances surrounding this disclosure this morning.

DDA Presby states that he is going to ask that Mr. Stone contact Sgt. A, that all the transcripts from all the Board of Rights hearings [related to this incident] be provided to the DA’s office so they can then be provided to the defense [via discovery].

In closing, DDA Presby adds, “And as I told your honor, there may be some legal impediments to providing that material. We may need judicial guidance from your honor or another court with production of that material.”

Judge Bork states that before he turns it over to Mr. Rico for his record, he tells counsel, “We are in trial and I’ve got 55 plus jurors to excuse from this problem. I don’t know yet how much of a problem it is and what is out there, and I don’t know what independent or inconsistent statement, or is it ... and it’s hard to judge what’s out there before we have some greater certainty.”

DDA Presby tells the court he will get with the parties to try to provide the material so a decision can be made.

Then Mr. Rico makes his record. He states that around 10:25am he was approached by DDA Presby who informed him about being approached by Sgt. A. Mr. Presby advised Mr. Rico that he was informed that there was a statement made by Officer B at his own Board of Rights hearing, that he had told or made a statement to Officer O’Callaghan to stop or something. Officer C, testified [at a Board of Rights hearing] under oath and that he had supported Officer B of that position and also told her to stop.

Mr. Rico tells the court that in the past 14 months he has been given voluminous discovery. DDA Presby has been more than candid with discovery. My issue is with the due process and the fairness to Ms. O’Callaghan. I know that what ever testimony that has been given [at these Board of Rights hearings] would have been taken down, just like we have a court reporter here and those statements would be transcribed if not already transcribed. 

Mr. Rico’s position is clear, that this is rather Brady, discoverable. It is a prior inconsistent statement to be used for impeachment purposes. Mr. Rico closes with, “I’ll leave it at that, your honor.” I believe Mr. Rico adds that it greatly impacts his clients right to a fair trial. It greatly impacts the jury in this matter. Mr. Rico also mentions something to the effect that it cannot be reviewed overnight. Mr. Rico will ask for a continuance of the proceedings if that evidence does exist.

The trial has until 2pm when jurors come back.

Judge Bork again instructs counsel that he needs their help in determining what is out there. Is the information out there? Is it transcribed? Is it in fact inconsistent statements? How does the court get it into your hands. Judge Bork requests that Sgt. A be present at 1:30pm. I believe the court adds that he knows there are issues as to what can be turned over .... and when personnel protections that must be  made there. The court states he needs to know what is out there, and the defendant has a right to a speedy trial. The judge again requests that Sgt. A be present. If he needs a city attorney, the court is sure one could be present. The court states he needs St. A’s assistance and everyone’s assistance to see if there is a good cause basis for continuance or not.

Counsel ordered back at 1:30pm with as many answers as they can get.

1:35 PM
Back on the record. DDA Presby tells the court that he has received a single page document from Sgt. A. However, because the information contains personal information regarding LAPD officers, he may be committing a misdemeanor if he turns this document over to the defense. DDA Presby is willing to present the document to the court under seal. The court then could read the document to see if the information in the document gives the court guidance on how to proceed. DDA Presby states that the only method to turning this information over to the defense is through Pitchess motions.

There's more discussion that I'll detail later. In closing, Mr. Rico moves for a 1050 motion for a continuance of the trial to preserve his client's right to a fair trial. DDA Presby joins in that 1050 motion. Judge Bork asks the parties to hold on. He's going to consider this for five minutes.

1:58 PM
Back on the record.
Is the matter submitted?  Court finds itself in a most unfortunate situation a panel of 60 jurors sworn, most of whom are out in the hallway so to speak. But it has come to the courts attention there is probative material that cannot be obtained by a simple court order. There is the Pitchess process that must be followed. Based on what has been presented to me, there is evidence that must be disclosed to both parties. It's very possibly Brady evidence. And it must be litigated for it to get to the defense.

As much as I'd like to move forward, I have no alternative but to declare a mistrial, because there is evidence to declare a mistrial and continue the case.  He will excuse the jury first then they will set up a new date.

3:35 PM
T&T readers. I'm back home. Over the next few hours I'll be transcribing my rough notes from the afternoon session and posting in a few hours.

Judge Bork set the next pretrial hearing date in the O'Callaghan case for April 2nd in Dept. 131.

UPDATE 6:26 PM
Below are my updated, detailed notes for the afternoon session as promised. Sprocket.

Around 1:30pm I enter Dept. 118. Counsel are already at their respective tables. Off the record Mr. Rico asks the court how he feels about water on the table. Judge Bork replies, “If it’s in a small, discreet container, I’m okay with that.”

 Judge Bork says, “Back on the record. No jurors are present. Thank you for your promptness counsel.”

DDA Presby addresses the court. “I have been provided with a one pager report from Sgt. A, who is also in court. ... I believe I may be committing a misdemeanor if I turned that over. ... I think we need to go through the Pitchess process before we turn this over.  ... While the people may obtain these protective personnel records ... we are prohibited from disseminating those records absent a court order.”

DDA Presby continues that he has a one page memorandum from Sgt. A. “I can provide that to your honor under seal. ... Your honor can review that. ... Maybe that would be enough in respect of the 1050 motion.”

Judge Bork asks, “Are you able to tell me what that is without ... jeopardizing it’s possible confidentiality?” DDA Presby responds, “It is a memorandum to Detective Pete Stone from Stg. A dated today regarding a Board of Rights [Hearing].”

Judge Bork responds, "So your suggestion is that I view it ... that it may give me additional insight whether or not there is discovery evidence out there that would need to be turned over or sought, and could constitute good cause for a mistrial and a continuance?”  DDA Presby replies, “Yes.” 

The court asks but Mr. Rico does not want to be heard at this point.

Judge Bork states, “Since I’m aware of Pitchess and his prodigy as to confidentiality as to personnel records ... I will review that and seal it. ... If I determine that it does not need to be under seal then I will either offer it back to you and or unseal it.”

DDA Presby states, “We offer it under seal.” He also adds that he does believe that it contains protective personnel records.

Judge Bork reviews the document then addresses counsel. “Without revealing what is in the memorandum, there is an indication that there was an attachment.” DDA Presby tells the court that he did not receive an attachment with the single page document.

Judge Bork tells the parties that he is striking through that information on the document that states there is an attachment. “I have not read any transcripts and read the one page memo only,” Judge Bork adds.

Judge Bork addresses DDA Presby, “So your review would state that Board of Rights needs Pitchess?” DDA Presby replies, “Not necessarily for the DA’s office but certainly for dissemination to the defense.”

That hearing could contain Brady material.

The court expresses “great frustration here.” Judge Bork adds, “I’ve got 55 jurors that will be back in 22 minutes and have interrupted their lives for two days. If there ever is a time that we should have information relevant to a defendant ... but we’re faced with the possibility of [continuance?].”

Mr. Rico addresses the court. “I share the court’s frustration. I believe the fair rights of my client and due process supersedes the concerns of both myself, the counsel and the court and believe the 1050 should be granted.”

Judge Bork states, “I have every reason to believe that both counsel are acting in good faith. At some token, it is beyond me how we could have gotten to this state. ... That a person is charged with a crime where that person could go to prison and we don’t have full discovery.”

DDA Presby adds, “I understand the court’s frustration in this area. ... This area is a very complex area and the privacy rights afforded to police officers is a significant challenge to both sides.” Judge Bork replies, “One or both of you, tell me what each of your motions is. But I want to know so our record is clear.”

Mr. Rico puts his motion first. “On behalf of Mary O’Callaghn, to continue this matter according to section 1050. There is impeachment material [that?] exists, and those statements were given at a protective, private hearing, that can only be disclosed via Pitchess. ... [My client] could not have a fair trial if there is Brady material that exists. ... The people have been candid in their disclosure. This has not been at the error of the defendant.” Mr. Rico asks for a motion to continue the case and to declare a mistrial.

DDA Presby states, “The people join in the motion to continue. I don’t believe jeopardy has attached. I don’t know if the proper remedy is to declare a mistrial or to quash the [voir dire?]. ... I do apologize to the court to derailing these proceedings at this point. ... Only discovered [this material today]. ... Given the privileges that are given to the officers and to the City of Los Angeles, they are the only ones that can waive the Pitchess process.” 

Judge Bork asks, “Why can we not get someone from the city attorney’s office to determine if there is a willingness to waive?”  DDA Presby answers, “It has to be on a written motion and it has to be 21 days notice. ... And besides, they are going to gather the material and make any objections themselves. ... The officer that’s involved, Officer B needs to be [involved/notified].”

Judge Bork tells counsel, “We have 18 minutes until our jurors get back. I’ll take [this] under submission for about five minutes.”  Presby then tells the court that he does have the citation where, he could be committing a misdemeanor. I miss getting the correct citation number. Presby reads from the citation, “Hold in essence that disclosure of peace officer police records can constitute a misdemeanor crime according to the government code. ... The proper method to disclosing that material is through Pitchess.”  Judge Brock rules the one page memo be sealed and takes this under submission. He tells counsel, “Don’t go too far.” Judge Bork leaves the bench and goes back into chambers.

It seems like less than five minutes goes by and Judge Bork is back on the bench.

It’s 2pm. The jurors file in. I have to stand against the wall while the jurors take all the available seats. It’s difficult to near impossible to hold my laptop and type, but I do my best.

Judge Bork thanks the jurors and hopes they were able to enjoy the noon lunch hour. He informs the jurors that there is a piece of potential evidence that he can’t get and that counsel can’t get. He can’t move forward with the trial and it’s deeply frustrating. He tells the jurors that everyone has acted in good faith. There is no other remedy but to declare a mistrial. I’m going to excuse the jury. Everyone has done their duty, but we are unable to move forward with the trial. I apologize, but I’m grateful for your service.

Judge Bork then talks about the the jury system in the US.

“For well over 200 years, we have solved our disputes by trial by jury. ... It was brought over from England well over 200 years ago. ... For all that time, rather than fight it out in an alley, ... we ask folks like you to come forward and decide the case. ... But that’s how we solve our problems in this country, trial by jury. ... They know their case will be decided by folks like you.”  Judge Bork mentions the inconvenience that the jurors have endured, and that many of them are not being paid. He then tells the jurors that the only time that we did not have trial by jury was in [1765?] when the sovereign, King George suspended that, then we had the Revolutionary War. ... I’m grateful for your time and patience but my hope is that you will have another opportunity to do that [serve on a jury].”

He tells the group to turn in their orange tags and go back to the 11th floor jury room, not the fifth floor jury room and turn in their other badge to get credited for their jury service.

After the courtroom clears, I get to sit back down on a bench. Judge Bork states, “All jurors have now left and all parties are now present.” The next date on this matter, will be set back to Department 131. Counsel spoke earlier about an April 2 return date. Mr. Rico wants the April 2 date for a return. DDA Presby agrees.

Judge Bork addresses the defendant. “Ms. O’Callaghan, do you agree that we can set your next date as April 2?” She agrees. She is ordered back to Dept. 131 on April 2.

And that's it. I do not know at this time if I will be able to attend any future hearings in this case. It’s my understanding that the Cameron Brown trial is scheduled to start in mid March or early April of this year. I’ve tracked the Cameron Brown case since the second trial in 2009.

Mary O'Callaghan Trial - Day 1, Jury Selection

T&T full trial coverage can be found HERE.

LAPD Officer Mary O'Callaghan with her attorney Robert Rico

at a pretrial hearing. Photo courtesy KTLA website.

Wednesday, February 25, 2015

I'm at the downtown Los Angeles Criminal Court building. I got a notice a few days ago that the case against LAPD Officer Mary O'Callaghan was going to trial in a few days.

Mary O'Callaghan is charged with assault under color of authority in connection with the July 22, 2012 arrest of Alesia Thomas. Media reports indicate Ms. O'Callaghan is facing up to three years in state prison if convicted.

While in police custody, Ms. Thomas lost consciousness, went into cardiac arrest and died. The investigative report prepared by the DA's Justice System Integrity Division describes the events and the conclusions that were reached.

O'Callaghan was charged on October 10, 2013 and arraigned on October 15. Interestingly, O'Callaghan waived a preliminary hearing. It is unknown why the defense made this decision. Waving a prelim is not unusual; it happens.

When I arrive at the elevator bay in the lobby, I spot Pat Kelly from the Public Information Office. I ride the elevator up with her to the 13th floor. Pat is handling media requests for another case that is being heard in Dept. 100, the Olivia Cullbreath case. Cullbreath is charged with multiple counts of murder in a wrong-way car crash. I tell Pat I'm here for the O'Callaghan case.

Once inside Dept. 100, master calendar court, I see Deputy District Attorney Shannon Presby in the gallery. DDA Presby and his co-counsel Paul Nunez successfully prosecuted Detective Stephanie Lazarus of first degree murder in the death of Sherri Rasmussen. DDA Presby is sitting with another gentleman, whom I'm guessing is a co-counsel or his investigating officer. When DDA Presby sees me, he comes over to say hello. I tell him I'm here for his case.

I keep checking the gallery for other prosecutors I might know but I don't see anyone. I do see a familiar defense attorney, Kelly Gerner.  Gerner was part of the team that represented Lois Goodman.

Over in the seats to the right of the bench are a couple of cameramen. Pat Kelly heads over to them. They are here to video Cullbreath.

In the back of the gallery on the right side, I spot Ms. O'Callaghan and her attorney Robert Rico. A female friend is sitting beside O'Callaghan.

The O'Callaghan case is the second case called when Judge Scott Gordon, the Assistant Supervising Judge, takes the bench. The case is transferred to Dept. 118 on the 11th floor.  DDA Presby takes the court's case file and packs up. I also head towards the 11th floor. 

Dept. 118 is at the end of the left wing on the right side. On the door it states Anne H. Egerton, but when I step inside a man is on the bench, Judge Terry A. Bork.  Judge Bork has several cases on his calendar. There are two people at the prosecution table and a couple defense attorneys in the well. There are a few people in the gallery.  It looks like the court is quite busy at the moment.

I sit in the third bench row. Behind me are Ms. Callaghan, her friend and her counsel.  The courtroom is almost a mirror image of Dept. 108, Judge Ohta's courtroom. The only difference is, the jury box is slightly smaller. There are only 14 seats in the jury box instead of 18. This means the front row of the gallery seating is longer.

I note something different in Dept. 118 than any other courtroom I've been in on the 9th floor. There are no signs in the front row that say, "Do Not Sit Here" or "No Seating Without Permission."

I've seen seen Judge Bork's clerk before in other courtrooms, but I don't know her name. There is a small plant on the far corner of her desk. She has beautiful hair, that seems like it changes color. I'm really drawn to how the fluorescent light bounces off of her hair. First I think it's light brown, then it looks like it's dark blond, then it looks like there is a hint of red. I have to force myself to check out the rest of Judge Bork's courtroom. The court reporter is a tall, elegant black woman. Her hair is pulled back in a tight bun and she's wearing gold loop earrings. Judge Bork is a white man with balding hair. I'm also struck by the bailiff. He is almost the spitting image of actor Domineck Lombardozzi, who played “Herc” in David Simon’s HBO series, The Wire. The only difference is, this bailiff is slimmer and has a much more handsome cut to his jaw.

9:30 AM

DDA Presby arrives. He hands a witness list to Mr. Rico. DDA Presby heads over to the clerk's desk getting various papers logged in. She is stamping every document and it makes a loud sound each time.

More attorneys file in that I saw in Dept. 100, their cases transferred to this courtroom. One of them is Kelly Grerner.

I overhear DDA Presby and the defense attorney chat about the possibility that they will pick a jury at 1:30 pm. I hear the clerk tell counsel that the Judge will speak to them off the record. I see both attorneys introduce themselves to Judge Bork who shakes both their hands. I hear DDA Presby explain to the court the filings that he’s already made.

After they step away from the judge’s bench, DDA Presby confirms to me that they are back at 1:30 PM. At some point in the morning, DDA Presby told me that the man with him is his investigating officer, Pete Stone, with the LAPD's Force Investigation Division. In the elevator down, I mention to Officer Stone that I met another officer in his unit, Thomas Townsend. Townsend was the IO on the Rafael Martinez case.

I head down to the cafeteria to start writing.  The cafeteria is ice cold so I decide to take a walk outside to try to warm up. I walk to a cafe past LAPD Headquarters to get a cup of tea and find a warm, outside seat where I can write.

1:32 PM

Back inside Dept. 118, DDA Presby sets up his files. I note that there are many seats in the well in front of the jury box and along the dividing wall. The seats all have papers on them. Judge Bork asks counsel back in chambers.

1:50 PM

We're still waiting in the gallery. The clerk is very busy. She's sorting papers and inserting them into various case files.

1:55 PM

Judge Bork comes out and asks his clerk how long it would take for them to get jurors. Then all parties come out. The judge states that he's going to order a panel for 2:30 PM. They will get 60 jurors. Ms. O'Callaghan leaves the gallery and joins her counsel at the defense table. Judge Bork goes on the record. The parties state their appearances for the record.

The court states that the case was transferred from Dept. 100 to this court for jury trial. A panel has been ordered. Trial is estimated to take 10 days.

The judge addresses media requests. An independent journalist requests permission to live tweet the trial via either phone or computer. There are also two media requests to film the trial.  The defense objects to all the media requests due to prejudice to the defendant's right to a fair trial. The defense also objects to the impact the media coverage might have on the jury.

The people's position is no objection to the media coverage. The trial is an open proceeding and there is public interest.

Judge Bork rules on the request from an independent journalist, whose name is Thandi. (Thandi's twitter feed can be found HERE.) The request is granted as long as the laptop makes no audible noise in the courtroom.  I'm surprised. I've never covered a case downtown where the court allowed live tweeting from inside the courtroom. Judge Bork rules there is to be no audio recording and no photography. 

The media requests from KTLA and KCAL are granted but limited to opening statements, closing arguments and verdict. Judge Bork mentions the risk of jurors being shown. The cameras must be set along the back wall of the courtroom.

Judge Bork then makes a disclosure on the record. Prior to taking the bench in 2007, when he was Deputy District Attorney, he spent approximately 1-2 years in the JSID unit. "My time was 16 years ago. ... Then in the late summer of 2007, ... appointed to the bench." Judge Bork also mentions his prior work in private practice. Judge Bork feels his prior assignments do not merit recusal. He believes he can be fair to both sides. He asks counsel if they wish to be heard. No one wishes to be heard on his ruling.  Judge Bork also states that 12-15 witnesses may be called. 

Judge Bork then talks about how voir dire will go. Each side will get 10 peremptory challenges. He explains that he packs the well with 24 potential jurors. They will seat 12 in the box and the rest in the other chairs in the well. Counsel will get 1 minute each to question each juror, after the court has asked some preliminary questions. He tells counsel to budget their time accordingly. The court asks if counsel has a jury instruction draft. DDA Presby has a draft pattern for instruction 149.

The court then explains that once they get their panel today, he will conduct hardship questioning on the first 60 jurors. Tomorrow, they will start with voir dire.

2:15 PM 

There is a break until the jurors arrive. I take the time to contact the PIO to get approval to live blog the trial. After some back and forth, the court clerk comes over to me. I introduce myself and explain what I'd like to do. I agree to no audio or video recording. 

3:05 PM

Jurors arrive in Dept. 118.  The court asks the media to leave the benches and stand against the wall. I try to type with one hand while holding my laptop. 

Once all the jurors are seated Judge Bork tells the jurors about the case and introduces his court staff. He explains that everyone who works in the court takes an oath. Witnesses take an oath, and jurors are expected to take an oath as well.  Jurors are asked to stand and the oath is administered.

Judge Bork explains that if any juror has a question, they are to write it on a piece of paper and give it to the bailiff. He also explains to them about speaking in full words, and the difficulty of transcribing Uh-huh and Um. He also talks about asking and answering questions in a way that's understood.

The court has counsel introduce themselves and then reads the charges against Ms. O'Callaghan. He explains the time frame of the trial and that they will start about 10:30 AM or 10:45 AM each day and end at 4;15 PM. Possibly start even earlier on Friday's, by 10 AM.  The judge then goes on to explain financial hardship excuses. He will only excuse for extreme financial hardship at this time.

He tells the gallery that if they do not want to be heard on financial hardship at this time, then they can leave now and report back tomorrow at 10:30 AM.  If they want to be heard on hardship, they will call each juror one at a time and he will hear them. He then tells the potential jurors that there are media outlets in the courtroom and there may be media interest. He tells them that if they are watching the news and the case comes on, the court requests that they immediately turn the channel. No media, no Internet, no Twitter. He tells them they need to restrict what they hear about the case to sworn testimony and sworn evidence.

The court will now hear hardship cases. About 12-15 jurors hold up their hands to plead hardship. All the jurors exit the courtroom. Those who want to plead hardship line up in the hallway in number order. Eighteen jurors line up and are called before the court one by one.  Judge Bork is not sympathetic to people who state they will have trouble paying their rent or student loans. A few people misunderstood that this was only for financial hardship, and not because they don't understand English very well.  All of those jurors, he orders back. After the last juror is heard, court is adjourned until tomorrow at 10:30 AM.

To be continued in Day 2.....

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