Wednesday, May 1, 2013

Kelley's Writ - I Wonder Why One Of My Trial Lawyers Called Cohen's Operative, Stephen Gianelli (The 14th Sheepdog), To Discuss My Witnesses & What They Could Or Could Not Corroborate?


The Due Process Clause of the Fourteenth Amendment guarantees a criminal defendant the effective assistance of counsel.


The Sixth Amendment’s guarantee of “assistance of counsel” for the defense of an accused has long been held to mean that a criminal defendant has a right to the effective assistance of counsel.  The U.S.  Supreme Court has interpreted this right as extending to all “critical” stages of a criminal proceeding.  In Missouri v. Frye, 132 S.Ct. 1399 (2012), the Court examined the issue of whether the Sixth Amendment’s guarantee of effective assistance of counsel encompasses the negotiation and consideration of plea offers.

In Frye, the defendant was accused of driving with a revoked license—an offense for which Frye had been convicted three times before.  The prosecution extended two alternative plea recommendations.  Each recommendation was formal and included an expiration date.  Defense counsel allowed both offers to lapse without communicating either of the prosecution’s proposed plea recommendations to Frye. Subsequently, he was sentenced to three years in jail.  After learning of the lapsed plea offers, Frye applied for relief after the court entered his conviction, alleging ineffective assistance of counsel.  He argued that had he known of the offered plea recommendations, he would have pleaded guilty to the misdemeanor.  The Missouri Court of Appeals concluded that Frye had shown a violation of the Sixth Amendment under the test set forth in Strickland v. Washington, 466 U.S. 668, 686 (1984).

The Supreme Court agreed.  In holding that the Sixth Amendment’s guarantee of effective assistance of counsel extends to the consideration and negotiation of pleas, the Court recognized the prevalence of plea bargaining within the criminal justice system.  Noting that 95% of criminal convictions are based upon guilty pleas, the Court determined that “it is insufficient simply to point to the guarantee of a fair trial as a backdrop that inoculates any errors in the pretrial process.”  Thus, the Court acknowledged that failing to recognize the constitutional guarantee of effective assistance of counsel to the plea bargaining stage would deny the accused the right to guidance “‘at the only stage when legal aid and advice would help him.’”

The Court outlined the steps a defendant must take to show that a violation of a defendant’s Sixth Amendment right to effective assistance of counsel has been violated at the plea bargaining stage.  Under the test set forth in Strickland, the accused must prove (1) that counsel’s assistance had been deficient, and (2) that, as a result of the deficient assistance, the defendant was prejudiced.

In cases alleging ineffective assistance in the plea bargaining stage, the Court held that defense counsel has an obligation to communicate plea offers to the accused and to advise the accused as to the favorability of the recommendation. Thus, if the attorney for the accused fails to communicate a plea recommendation to the accused and “allow[s] the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”  As a result, if a plea recommendation lapses and defense counsel fails to communicate the offer to his client, his conduct is “deficient” under the first prong of the Strickland test.  Next, the defendant must show prejudice resulting from the ineffective assistance of counsel.  In order to demonstrate this, the defendant must show that there is a “reasonable probability” that they would have accepted the plea recommendation.  The defendant must also show a reasonable probability that the plea would have been accepted by the court and not withdrawn by the prosecution.  In essence, where counsel fails to communicate a plea recommendation, the defendant must prove that he would have accepted the plea and not gone to trial, or that the later plea accepted was less favorable than the plea initially offered.

Defense counsel did not convey the terms of the plea offer discussed with prosecutor Sandra Jo Streeter to Petitioner until April 6, 2012, after voir dire began.  The plea deal, while in the public defender’s attorney notes, is not part of the trial record.  What unfolded with respect to the discussion regarding a plea deal and/or trial is set forth as follows.  On April 4, 2012, public defender Mike Kelly met with Petitioner alone - at the courthouse - and advised her that the City Attorney wanted to go to trial.  There was no  discussion about a plea deal.  Petitioner advised the public defender that she would plead not guilty and refused to waive her right to a speedy trial.  He noted that this was acceptable because he had co-counsel on the case and would  have time to review the evidence over the weekend and prior to the start of testimony.  Unfortunately, the court appointed lawyers did not participate in what could reasonably be viewed as simple, routine preparation for trial (long before April 4, 2012) that would include meeting with one’s client (at the jail or via video-conferencing) to get the facts and details straight; discuss the evidence and issues; review the prosecution’s case and potential witnesses for Petitioner; and so forth.  Due to this, facts were misstated, issues were confused, witnesses did not receive subpoenas, motions were not filed, evidence was not authenticated or suppressed; and many details were overlooked.   Both lawyers were aware that Petitioner was not served or notified of the California order registered on May 25, 2011, and this should have been addressed during trial and in a motion to dismiss the case due to unlawful arrest.  They were also aware of the egregious prosecutorial misconduct which Petitioner discussed throughout the trial with one of her court appointed lawyers although no objections exist with respect to the misconduct and it was not raised in a motion with the court.  

On Friday, April 6th, , Petitioner asked Mike Kelly (whose co-counsel Nikhil Ramnaney was present) why she wasn’t offered a plea deal.  Various LASD employees and inmates had advised her that this was inconceivable with respect to a misdemeanor - as was the fact that it was going to trial.  At that time, Petitioner was told that the prosecutor discussed the following terms with respect to a plea deal:  Plead guilty to two charges, 36 months of summary probation, and 180 days of county jail.  This plea deal should have been confirmed in writing with the prosecutor and raised on the record to avoid any future confusion or deception.  Petitioner did not have an opportunity to accept the plea deal because the trial had begun and her court appointed lawyers never advised her to do so.  In fact, there was no discussion about this issue.  Had Petitioner taken the plea deal, she would have served approximately 180 days with a maximum of 90 days.  By the time the trial began, Petitioner had served approximately 40 days which would have been calculated as 80 days.  Clearly, Petitioner would have accepted a plea deal that caused her to serve approximately 45 days rather than an extensive 18 month sentence, causing Petitioner to serve 8 months at Lynwood County Jail  The PD attorney notes state that Petitioner would have served 10 to 30% of the 180 days.  In other words, Petitioner would have served 18 to 54 days.  The sentence, per the attorney notes and our discussions, was not consecutive unlike the punitive sentence - involving domestic violence fines - Petitioner ultimately received.  Petitioner has no prior record; was not served the California registered order; had no knowledge or notice of that order - and no evidence exists to the contrary; and should have received probation, if anything at all.  Petitioner’s sentence appears to be an abuse of discretion on the part of the trial court.  The public defenders confirm, in their attorney notes, that they advised the prosecutor they would not be settling the case.  There is nothing on the record or in writing confirming either the plea deal or rejected settlement.  Petitioner would clearly have accepted the plea deal .  Petitioner’s sentence now involves 5 years of summary probation, thousands of dollars in fines, and the refusal of the appellate division to abandon this appeal due to serious and egregious prosecutorial misconduct, retaliation, and for other good and legitimate purposes.  Defense counsel did not advise the Petitioner as to the favorability of the recommendation.  Petitioner was clearly prejudiced by the circumstances surrounded this plea deal and has reasonably demonstrated that she would have accepted the more favorable offer had she been afforded the effective assistance of counsel.  Petitioner believes the plea deal would have been entered without the prosecution’s cancelling it due to the fact that the prosecution offered the terms of the plea deal; 94% of state convictions are the result of guilty pleas (See Department of Justice, Bureau of Justice Statistics); and, based upon the Declaration of Susan Schmitter in this matter that states:  “The City attorney’s Office ... is currently short-staffed due to budgetary constraints ... Attorneys within the Los Angeles City Attorney’s Office are currently furloughed approximately 1-1/2 days every two weeks due to the budget crisis within the City of Los Angeles.  We are required to work no more than 69.5 hours every two weeks.”

To prevail on a claim of ineffective assistance of counsel, appellant must show deficient representation and resulting prejudice.  (In re Alvernaz (1992) 2 Cal.4th 924, 936-937.)   In the context of a plea bargain, prejudice is shown where there is a reasonable probability that the defendant would have accepted the proffered plea bargain had he been properly advised by counsel, and there is a reasonable probability the trial court would have approved the plea bargain.  (Id., at p. 937.)  By withholding all discussion with respect to a plea deal, until Petitioner raised the issue - after the trial began - and given the fact that she was offered no favorable or clear advice with respect to the plea deal offer, Petitioner maintains that counsel’s performance fell far below an objective standard of reasonableness and there was no rational tactical reason for counsel’s failure to advise Petitioner of the plea deal.  

Other areas where ineffective assistance of counsel severely prejudiced Petitioner are:  Lack of authentication of voice mail messages (altered in terms of sound, speed, and volume); lack of authentication with respect to email messages that could easily have been altered and which were not obtained via subpoena; email account ownership not verified with Gmail; transcripts of voice mail messages are incoherent and wholly inaccurate (that would include with respect to the February 15, 2011 alleged voice mail where Petitioner stated in a menacing tone “Cohen is going to be hung” which she refutes; voice mail messages could not be date or time stamped and were out of sequence when reviewed by Detetive Viramontes/LAPD; the chain of evidence is sloppy, confused, and there is conflicting testimony over whether the CDs containing the alleged voice mail messages and email messages  were given directly to LAPD’s Wilshire Division, the City Attorney’s office, or Detective Viramontes at LAPD’s Threat Management Unit.  Nothing indicates how Detective Viramontes/LAPD came into possession of the CDs he forwarded to the City Attorney’s office per his report); no discussion was had with Petitioner about the sound quality of the CDs or the fact that she is affiliated with many reputable record producers and sound engineers (including The Scientist, a world renown producer who lives in the Los Angeles area and could have testified); defense attorneys did not require the prosecutor to turn over the tax forms she and prosecution witnesses falsely informed the jurors Petitioner has in her possession - nor did they clarify, for the jurors, the issues with the K-1s that are evidence of criminal conduct on the part of Leonard Cohen (the sole owner of the issuing entity); defense counsel did not raise the fact that Cohen testified at the March 23, 2012 hearing that Petitioner only stole his “peace of mind” or address his public statement that he wasn’t accusing Petitioner of theft; defense lawyers failed to address the fact that Leonard Cohen concealed evidence that Petitioner owns 15% of all his intellectual property dating back to 1967 and fraudulently asserted in his retaliatory lawsuit that Petitioner received overpayments with respect to her commissions as Cohen’s personal manager;. defense lawyers failed to question Cohen over evidence in the public domain (NY Times and MacLean’s at the time of their interview with Cohen in 2005; a declaration of Cohen’s in the failed CAK bond deal, and elsewhere) that proves Lynch was Cohen’s personal manager from 1988 through October 2004 and failed to subpoena witnesses - including Cohen’s business manager (Rich Feldstein) to impeach this false testimony; defense lawyers failed to address the extensive false and perjured testimony that has lead to entirely unreliable and tainted trial record - and the reviewing court cannot presume that the record contains evidence to support every finding of fact; defense lawyers failed to address the egregious prosecutorial misconduct through objections and in motions with the court; defense lawyers failed to request definitions for the words “annoy,” “obscene,” “expletive,” “good faith,” or “legitimate;” defense lawyers did not advise the trial court to apprise the jurors of the actual elements of the “intent to annoy” statute; defense lawyers did not challenge the “intent to annoy” statute as unconstitutionally vague and overly broad; defense lawyers did not challenge the fact that a business relationship exists between Petitioner and Cohen due to the fact that he owes her millions of dollars, has failed to provide her with the IRS required form 1099 for the year 2004; has failed to rescind K-1s wrongfully issued Petitioner (and transmitted to the State of Kentucky and IRS) for the years 2003, 2004, and 2005, refuses to provide Petitioner with an actual accounting; defense lawyers did not appear to address the inadmissibility of a great deal of the evidence; or use documents in the IRS binder and the email thread the prosecutor provided the defense with re. Phil Spector and a version of Cohen’s gun story that differs from his testimony on this subject.  And, to add insult to injury, the Public Defender’s Office refuses to provide Petitioner with her complete file - including the evidence on CDs, copy of the motion in limine filed, and other documentation Petitioner requires for her appeal, this writ, and for other reasons.  Petitioner can see no reasonable tactical justification for counsel’s failure to act with respect to the aforesaid issues.  A defendant bears the burden of demonstrating he received ineffective assistance from his attorney; he must first show counsel's performance was “deficient” because
his “representation fell below an objective standard of reasonableness ... under
prevailing professional norms.” Strickland v. Washington (1984) 466 U.S. 668, 687-688.  Second, he must also show prejudice by establishing a reasonable probability the outcome would have been different if his attorney had not committed the claimed unprofessional error. (Id. at 691-694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Id. at 694.)  Third, on direct appeal defendant must also convince the court “there simply could be no satisfactory explanation” for counsel's failure to act.” People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.  The reviewing court might also have difficulty understanding why one of my trial lawyers apparently contacted a lawyer, aligned with Leonard Cohen, to discuss my witnesses and what they could or could not corroborate.  

Counsel also failed to file a motion to exclude the prior bad acts evidence - much of which was distorted, taken out of  context, based on concealed evidence (ie., Mick Brown and the Phil Spector Grand Jury statements/testimony issue)  and failed to object to highly inflammatory evidence which the prosecutor exploited in closing argument.  See People v. Guizar (1986) 180 Cal.App.3d 487.

“[W]here the record shows that counsel has failed to research the law or investigate the facts in the manner of a diligent and conscientious advocate, the conviction should be reversed since the defendant has been deprived of adequate assistance of counsel.”  People v. Pope (1979) 23 Cal.3d 412, 426.)  

The reality is that many prosecution error claims are lost because trial counsel did not adequately preserve the record. If the duty of record preservation were repeatedly pounded into the heads of young trial counsel, many significant issues would not be lost to the record on appeal.   It seems  obvious that Petitioner has been deprived of adequate assistance of counsel and the harm is irreversible.  

There is no question a prepared, record-attentive trial counsel is a far more formidable opponent and better trial lawyer than those who eschew record making.  Prosecutors are far less likely to try and take advantage of a defense attorney who is ready to pounce on misconduct by objections and calls for sanctions.  Petitioner’s trial counsel were not prepared nor record-attentive.  

On appeal, talking to the trial counsel early in the appeal process about the issues is important, not only to gain an understanding of the case and likely issues, but because good trial counsel may invite you to examine his/her performance in not preserving a particular issue.  Trial counsel refuse to speak with Petitioner and the Public Defender’s Office has failed to provide Petitioner with a complete copy of her file which is unconscionable conduct.  

Trial counsel had an obligation to object to the prosecutor’s misconduct at trial - as well as to her inflammatory and irrelevant statements.  The public defenders had a duty to object at trial and make a record of the prosecutorial misconduct which was and remains rampant.  

“One of defense counsel's most important roles is to ensure that the prosecutor does not transgress those bounds [of proper conduct].” Washington v. Hofbauer (6th Cir. 2000) 228 F.3d 689, 709.)  However, it does not seem probable that an objection or cautionary instruction would counteract fully the irreversible prejudice to the Petitioner resulted from the prosecutor's remarks.   The prosecutor's statements and conduct “so infected the trial with unfairness as to ... [be] a denial of due process” under the 14th Amendment to the U.S. Constitution.  Donnelly v. DeChristophero (1974) 416 U.S. 637, 643.  

Due to ineffective assistance of counsel and the  failure to preserve the record Petitioner would be further harmed should the court deny her a review regardless of the failure to object. (E.g., People v. Crittenden (1994) 9 Cal.4th 83, 146, the court held that defense counsel waived issues of prosecution misconduct for failure of trial counsel to object, but then reviewed the issue anyway: “Nonetheless, in view of the potential claim that counsel's failure to object on the specific grounds urged on appeal denied him his rights under the state and federal Constitutions to the effective assistance of counsel, we review these claims on the merits.”)

Appellant was denied her constitutional right to a fair trial and defense due to the egregious ineffective assistance of counsel, failure to properly address issues on the record and object to - among other things - prosecutorial misconduct and/or error, and the failure to sit down and meet with Petitioner as well as to deny her the right to be made aware of the plea deal discussions, terms, and to be given appropriate legal advice with respect to that plea deal.