Wednesday, May 1, 2013

Kelley's Writ - Re. Leonard Cohen, Los Angeles City Attorney, Los Angeles District Attorney, Etc.


Petitioner was arrested on March 1, 2012 by Berkeley, California Police Department for violating a restraining order.  Petitioner alleges that her conviction rests on, among other things,  an unlawful arrest and evidence obtained by an illegal search and seizure, in violation of the Fourth Amendment to the Constitution of the United States.   Petitioner contends that she was convicted in violation of the rights guaranteed to her by the Constitution of the United States based on violations of due process, lack of service, evidence used against her at the trial that was the product of an unlawful search and seizure, violations of her First Amendment rights, ineffective assistance of counsel, and egregious prosecutorial misconduct.  Specifically, emails that could not be authenticated, were forwarded and possibly altered and/or edited to remove attorney/client privileged information, and voice mail messages that were out of sequence and could not be date or time stamped.  

Evidence that the emails were altered by Cohen when he forwarded them.  This email was clearly inadvertently sent to Kelley Lynch by Leonard Cohen who testified that this is his email address.  

From: <>
Date: Fri, Sep 23, 2011 at 10:35 PM
Subject: from LC -Re: Kelley Lynch - 2004 and 2005 Federal and State Tax Returns

i see Rutger is copied in

The alleged evidence was seized without a search warrant, based on fraudulent misrepresentations to the Threat Management Unit of the Los Angeles Police Department by Leonard Cohen, Robert Kory, and Michelle Rice.  Additionally, Petitioner contends that the arresting officers had insufficient information, which would include an investigation that consisted of a conversation with Petitioner (and a review of the evidence Petitioner has in her possession), on which to base the probable cause needed for an arrest.  The Trial Court erred in not dismissing the action because of the lack of service with respect to the California wrongfully registered order, unlawful arrest and wrongful search and seizure.  LAPD’s report states that “The messages date stamps are out of sequence because the victim did not set his answering machine to the correct date and time.  The victim can testify that the messages were left on the documented dates.”  “The violations occurred via direct phone calls to the victim and emails to the victim’s attorneys, Rice and Kory.  The emails generally were in request of tax and financial information to amend Kelly Rice [Lynch] 2001 through 2010 tax returns.”  LAPD viewed the emails as requests for tax and financial information which is a good faith business purpose for contacting Leonard Cohen.  The voice mails - per LAPD’s summaries - also contain repeated requests for tax and financial information.  It is difficult to understand why this case was forwarded to the City Attorney’s office and why the City Attorney’s office decided to prosecute the matter, apart from the fact that Leonard Cohen is a celebrity.

Public Defender - Closing Argument:  She [Michelle Rice, Leonard Cohen’s lawyer] also said she sent an email to my client on February 14, 2011.  In that email she said “we registered an order in California” ... There’s a Colorado order that was issued, and then the registration of that order in a California court, recognizing the Colorado’s order.  Now, the registration of the Colorado order in California on May 25th.  Ms. Rice admitted to that.  But she also said she sent an email to my client, Ms. Lynch, and said “we registered the order in California” ... When I asked her, well why did you say that?  You actually hadn’t registered it yet.  You didn’t register it until three months later.  (RT 586)  You didn’t register it, but you falsely said that ... She made a lie, a material misrepresentation in an email to my client.  (RT 587) As you read the jury instructions, it will say a valid protective order was issued in two cases, a Colorado case, and was subsequently recognized in a California order.  You’ll see these documents.  There are two pages; there’s an attachment and there’s a California order. The California order is number BQO33717.  (RT 591)  Now, I also want to talk about knowledge.  Because there is no proof of service of this California order.  (RT 593)  But there are two separate orders ... one in Colorado and one in California.  And the California order, Ms. Lynch’s signature is not on that sheet.  RT 593  Her signature is not on this sheet.  Streeter:  Objection; misstatement of the law, Your Honor.  Court:  Overruled.   There is no attached proof of service ... In California we have a thing called proof of service.   But there is no such proof of service on the California 2011 order.  None at all.  (RT 594)

There was no proof of service attached to the California order.  The required Proof of Service definitively proves to the court and law enforcement that the restrained individual was duly served or notified of the order.  California Code of Civil Procedure Section 527.6 states that: “If the law enforcement officer determines that a protective order has been issued, but not served, the officer shall immediately notify the respondent of the terms of the order and shall at that time also enforce the order. Verbal notice of the terms of the order shall constitute service of the order and is sufficient notice for the purposes of this section and for the purposes of Section 29825 of the Penal Code.” Petitioner was never notified or served the California domestic violence order registered on May 25, 2011 and no evidence contradicting that assertion exists.  

The due process clause of the Fourteenth Amendment governs any action of a State through its legislature, its courts, or its executive officers, including action through its prosecuting officers.  Personal service upon the person who is presumably restrained is required by a valid court order.  Service of process is the procedure employed to give legal notice to a person  of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body, or other tribunal.  Proper service of process establishes personal jurisdiction of the court over the person served.  The Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness.   It acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law.

The plaintiff is required to meet the burden of proof with respect to personal jurisdiction.  No such burden was met with respect to Petitioner.  The prosecution presented no evidence proving Petitioner was either notified or served of the California order.  A court of this state may exercise jurisdiction on any basis that is not inconsistent with the Constitution of this state or of the United States.

“To determine whether the assertion of personal jurisdiction is consistent with due process, this Court has long relied on the principles traditionally followed by American courts in marking out the territorial limits of each State's authority. See Pennoyer v. Neff, 95 U.S. 714, 722 . The classic expression of that criterion appeared in International Shoe Co. v. Washington, 326 U.S. 310, 316 , which held that a state court's assertion of personal jurisdiction must not violate ‘traditional notions of fair play and substantial justice.’” Burnham v. Superior Court - 495 U.S. 604 (1990).

Burnham v. Superior Court concluded that “a formidable body of precedent, stretching from common-law antecedents through decisions at or near the crucial time of the Fourteenth Amendment's adoption to many recent cases, reflects the near-unanimous view that service of process confers state-court jurisdiction.”

In Burnham v. Superior Court, the U.S. Supreme Court clearly stated that:  “The proposition that the judgment of a court lacking jurisdiction is void traces back to the English Year Books, see Bowser v. Collins, Y. B. Mich. 22 Edw. IV, f. 30, pl. 11, 145 Eng. Rep. 97 (Ex. Ch. 1482), and was made settled law by Lord Coke in Case of the Marshalsea, 10 Coke Rep. 68b, 77a, 77 Eng. Rep. 1027, 1041 (K. B. 1612). Traditionally that proposition was embodied in the phrase coram non judice, [495 U.S. 604, 609]   "before a person not a judge" - meaning, in effect, that the proceeding in question was not a judicial proceeding because lawful judicial authority was not present, and could therefore not yield a judgment. American courts invalidated, or denied recognition to, judgments that violated this common-law principle long before the Fourteenth Amendment was adopted. See, e. g., Grumon v. Raymond, 1 Conn. 40 (1814); Picquet v. Swan, 19 F. Cas. 609 (No. 11,134) (CC Mass. 1828); Dunn v. Dunn, 4 Paige 425 (N. Y. Ch. 1834); Evans v. Instine, 7 Ohio 273 (1835); Steel v. Smith, 7 Watts & Serg. 447 (Pa. 1844); Boswell's Lessee v. Otis, 9 How. 336, 350 (1850). In Pennoyer v. Neff, 95 U.S. 714, 732 (1878), we announced that the judgment of a court lacking personal jurisdiction violated the Due Process Clause of the Fourteenth Amendment as well.”

Additionally, the U.S. Supreme Court, in Burnham, held:  “To determine whether the assertion of personal jurisdiction is consistent with due process, we have long relied on the principles traditionally followed by American courts in marking out the territorial limits of each State's authority. That criterion was first announced in Pennoyer v. Neff, supra, in which we stated that due process "mean[s] a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights," id., at 733, including the "well-established principles of public law respecting the jurisdiction of an independent State over persons and property," id., at 722. In what has become the classic expression of the criterion, we said in International Shoe Co. v. Washington, 326 U.S. 310 (1945), that a state court's assertion of personal jurisdiction satisfies the Due Process Clause if it does not violate "`traditional notions of fair play and substantial justice.'" Id., at 316, quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940). See also Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982).”” And, “Among the most firmly established principles of personal jurisdiction in American tradition is that the courts of a State have jurisdiction over nonresidents who are physically present in the State. The view developed early that each State had the power to hale before its courts any individual who could be found within its borders, and that once having acquired jurisdiction over such a person by properly serving him with process, the State could retain jurisdiction to enter [495 U.S. 604, 611]   judgment against him, no matter how fleeting his visit. See, e. g., Potter v. Allin, 2 Root 63, 67 (Conn. 1793); Barrell v. Benjamin, 15 Mass. 354 (1819). That view had antecedents in English common-law practice, which sometimes allowed "transitory" actions, arising out of events outside the country, to be maintained against seemingly nonresident defendants who were present in England. See, e. g., Mostyn v. Fabrigas, 98 Eng. Rep. 1021 (K. B. 1774); Cartwright v. Pettus, 22 Eng. Rep. 916 (Ch. 1675). Justice Story believed the principle, which he traced to Roman origins, to be firmly grounded in English tradition: "[B]y the common law[,] personal actions, being transitory, may be brought in any place, where the party defendant may be found," for "every nation may . . . rightfully exercise jurisdiction over all persons within its domains." J. Story, Commentaries on the Conflict of Laws 554, 543 (1846). See also id., 530-538; Picquet v. Swan, supra, at 611-612 (Story, J.) ("Where a party is within a territory, he may justly be subjected to its process, and bound personally by the judgment pronounced, on such process, against him").”

The Due Process Clause of the Fourteenth Amendment permits a state court to exercise jurisdiction over a defendant if he or she is served with process while voluntarily present in the forum State.  A false arrest is a violation of the Fourth Amendment right against unreasonable seizure of persons.

The state court's assertion of personal jurisdiction violates traditional notions of fair play and substantial justice.