Friday, November 17, 2017

Kelley Lynch's Motion Barring the Prosecution from "Misstating" Federal Tax Laws, Etc. - Re. Leonard Cohen's Fraudulent Domestic Violence Order (issued to a man who sexually harassed Lynch for years)


            Kelley Lynch respectfully moves this Court to prohibit the People from engaging in improper and/or blatantly false argument or other misconduct with respect to federal laws, compliance with same, federal and state constitutional issues (including with respect to the Supremacy Clause and First Amendment of the United States Constitution), and any related misconduct, before the jury at her trial. The entire 2012 trial record is replete with false statements, perjured testimony, and blatant misstatements of law related to federal tax laws and compliance with same.  As the prosecution is relying on that conviction, Kelley Lynch asks this Court to prevent a similar set of circumstances from arising with respect to the proceedings in this case.
            At issue in this case are two unconstitutional conflicting state restraining orders obtained by deceased singer-songwriter Leonard Cohen against his former personal manager Kelley Lynch:  a 2008 order (civil harassment non-domestic violence) issued in Colorado (Boulder Combined Court Case No. 2008 C 776) and a 2011 order (domestic violence) issued in California (Los Angeles Superior Court Case No. BQ033717).  The orders have been used to obstruct justice with respect to federal tax matters, sabotage Internal Revenue Service and other tax authorities, interfere with civil litigation, pursue sham criminal prosecutions, and to discredit, crush and silence Kelley Lynch.
            Leonard Cohen’s pre-meditated plan to use restraining orders to crush Kelley Lynch and discredit her as a witness was first raised with the U.S. District Court in Colorado in 2005.  This information, overheard by “other witnesses,” was submitted to the Colorado federal court approximately six months prior to the issuance of the first Los Angeles Superior Court fraudulent restraining order against her.  It is important to note that the 2005 Los Angeles Superior Court restraining order was a civil harassment order – not a domestic violence order.  See Natural Wealth Real Estate, Inc., et al. v. Leonard

Cohen, et al. United States District Court, District of Colorado, Civil Case No. 05-cv-01233-LTB-MJW:
145. When these tactics to draw Lynch into his extortion scheme proved futile, Cohen and Kory – according to Lynch – turned to far more aggressive means to obtain her cooperation.  Indeed, as heard by other witnesses, Cohen and Kory vowed to "crush her," and planned to use restraining orders and other means to prevent her from serving as a credible witness regarding both Cohen's affairs and in regard to the scheme into which they had tried without success to draw her.

In support of this motion, Ms. Lynch submits the following:
1.      Kelley Lynch is charged with 17 misdemeanor offenses, including alleged violations of a
protection order issued to Leonard Cohen in Case No. BQ033717.  This is the California domestic violence order.  The Colorado order is not a domestic violence order and the Boulder Combined Court maintained exclusive modification jurisdiction.
Lynch is also charged with allegedly making repeated telephone calls with intent to annoy Leonard Cohen’s lawyers, Michelle Rice and Robert Kory.  
And finally, Lynch is charged with violation of a domestic violence related order (PC 136.2) issued to Robert Kory during these proceedings without minimal due process of law.  The alleged violation occurred when an individual, who was not Lynch, lifted a February 26, 2017 email she sent to the IRS Commissioner’s Staff from her blog, altered the content, and allegedly transmitted same to Robert Kory.  See Exhibit A:  LA Superior Court Docket, attached hereto and made a part hereof.
2.      The prosecution’s past and current misstatements of law continue to violate Kelley Lynch’s
Sixth Amendment right to a fair trial.  These misstatements of law violate other constitutional rights as well.  Misstating the law may constitute misconduct.  People v. Hill (1998) 17 Cal.4th 800, 819; People vBonin47 Cal.3d 808254 Cal.Rptr. 298, 765 P.2d 460 (1989).
Prosecutorial Misconduct

3.      It is improper for the prosecutor to misstate the law generally, and  particularly to
attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.”  People v. Hill, supra, 17 Cal.4th at pp. 829–830.
A Fair Trial
4.      The prosecutorial misstatements of law will deprive Lynch of a fair trial.  The U.S. Supreme
Court has defined a “fair trial” as “a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). 
5.      Under both California and federal law, prosecutorial misconduct renders a trial
“fundamentally unfair” and is a violation of due process.  The prosecutor’s misstatements were not inadvertent or isolated.  They infected the 2012 proceedings and have been used once again in this case.  These misstatements of federal and other laws had substantial and injurious effect and/or influence on the 2012 verdict.  During debriefing some of the jurors informed Lynch’s public defender that they wanted to hear from Internal Revenue Service.  One juror informed Lynch’s public defender that he felt “sorry” for Leonard Cohen due to DCA Streeter’s statements that one unidentified corporate account had only $150,000.00 in it and presented it to the jury as Leonard Cohen’s personal property.  See Exhibit B:  Declaration of Kelley Lynch, attached hereto and made a part hereof.
The Prosecution’s Prior & Ongoing Misconduct Violates the Federal Constitution & Is Misconduct Under California State Law

6.      A prosecutor's misconduct constitutes a federal constitutional violation when it
comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”  People v. Hill (1998) 17 Cal.4th 800, 819People vThomas (1992) 2 Cal.4th 489 , 7 Cal.Rptr.2d 199.  Conduct by a prosecutor is misconduct under state law when “it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.”  People vLinton (2013) 56 Cal4th 1146, 1194-1195, 158 Cal.Rptr. 3d 521People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305Hillsupra, 17 Cal.4th at p. 819.) In this regard, “what is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury
to the defendant. When . . . the claim focuses on comments made by the prosecutor before the jury, a court must determine at the threshold how the remarks would, or could, have been understood by a reasonable juror.”  People v. Benson (1990) 52 Cal.3d 754, 793.
7.      As in Hillsupra, 17 Cal.4th 800, in this case (including throughout the 2012 proceedings
which are being used as a prior conviction against Lynch), the prosecutor engaged in a pattern of conduct which included misstating the facts relating to the evidence and witnesses' testimony, misstating federal tax laws and compliance with same, and making improper references to alleged facts outside the record.  The prosecution also argued continuously that Leonard Cohen’s conduct was Lynch’s intent to annoy him. 
8.         Public prosecutors owe a special duty to the justice system.  See, e.g., National District Attorneys Association, The Prosecutor’s Deskbook 3-4 (Healy & Manak, eds. 1971) (as voice of community, prosecutors must have unquestioned integrity); American Bar Association, Criminal Justice Standards § 3-1.2(b) (4th Ed. 2015) (“[T]he primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.”).
9.         Improper prosecutorial argument does not merely offend the Constitution.  It may be so offensive as to raise a double jeopardy bar to retrial.  See, e.g., United States v. Jorn, 400 U.S. 470, 485 (1971).  For this reason, what might not otherwise be constitutional error should result in reversal where the prosecutor is specifically warned pretrial of potential error and where the error “might have affected the outcome of the trial.”  United States v. Agurs, 427 U.S. 97, 104 (1976) (emphasis added); see also Chaney v. Brown, 730 F.2d 1334, 1339-40 (10th Cir. 1984).
Misleading the Jury as to the Law
10.       A prosecutor may not mislead the court or jurors by misstating the law at any stage of the proceedings.  See People v. Hill, supra, 17 Cal.4th at 829; People v. Bell (1989) 49 Cal.3d 502, 538.)  See also California Rules of Professional Conduct, rule 5-200 (B): “in presenting a matter to a tribunal, a member [¶] (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.”  See also  Caldwell v. Mississippi, 472 U.S. 320 (1985), (prosecutors misstated the law when arguing to the jury); Mooney v. Holohan, 294 U.S. 103 (1935), (prosecutors knowingly used perjured testimony).  Nevertheless, the prosecution mislead the jurors throughout the 2012 proceedings.
The following areas of potential bad faith, misstatement of facts and law, as well as any prosecution misconduct with respect to same are improper and must be prohibited. 

It is misconduct to misstate the law.  E.g., in People v. Mendoza (1974) 37 Cal.App.3d 717, 726-727.  See Exhibit C:  Schedule of Misstatements of Federal Tax Laws throughout the 2012 proceedings and Relevant Federal Tax Laws, attached hereto and made a part hereof.  The People have continued to mislead this Court with respect to federal tax laws, compliance with same, and other relevant and material issues throughout these proceedings. 


The premise of federal supremacy (also known as preemption) is elementary.  See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824) (noting that state laws contrary to the laws of Congress are invalid because “in every such case, the act of Congress . . . is supreme; and the law of the State though enacted in the exercise of powers not controverted, must yield to it”); Mary Ann K. Bosack, Cigarette Act Preemption—Refining the Analysis, 66 N.Y.U. L. Rev. 756, 761 (1991) (“When Congress legislates in an area within its constitutional grant of power, the supremacy clause mandates that federal law displace state law.”).  When a state law conflicts with a federal law, the Supremacy Clause provides a resolution: federal law trumps state law.  U.S. Const. art. VI; Bosack, supra note 1, at 761.
The Supremacy Clause is a clause within Article VI of the U.S. Constitution which dictates that federal law is the “supreme law of the land.”  This means that courts in every state must follow the Constitution, laws, and treaties of the federal government in matters which are directly or indirectly within the government's control. Under the doctrine of preemption, which is based on the Supremacy Clause, federal law preempts state law, even when the laws conflict.
The federal government has broad powers under the Supremacy Clause to create, regulate, and enforce the laws of the United States. The concept of federalism, or that of federal power, has a long-standing history dating back to the late 1700's, during the time in which the nation's founding fathers signed the U.S. Constitution. Among those powers, the federal government has certain express (or “enumerated”) powers which are specifically spelled out in the U.S. Constitution, including the right to regulate commerce, declare war, levy taxes, establish immigration and bankruptcy laws, and so on.
Not only does the federal government have express powers under the U.S. Constitution, it also has implied powers, or powers not specifically mentioned in the Constitution. This was the decision in the landmark Supreme Court case of McCulloch vMaryland, 17 U.S. 316 (1819).  For example, the Constitution does not expressly mention the right to privacy, however, these rights can be inferred by the Constitution itself, or from the later amended Bill of Rights.
Whether express or implied, federal law will almost always prevail when it interferes or conflicts with state law, except in circumstances where the federal law is deemed unconstitutional, or where the Supremacy Clause does not apply. The federal government has broad powers with respect to issues related to discrimination claims, immigration challenges, federal taxation, and many others.
United States Supreme Court cases have established that state law is preempted under the Supremacy Clause in three circumstances. First, Congress can define explicitly the extent to which its enactments preempt state law. See Sprietsma v. Mercury Marine, 537 U.S. 51, 62-3 (2002). Second, state law is preempted where it regulates conduct in a field that Congress intended the federal government to occupy exclusively. Such an intent may be inferred from a “scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” or where an Act of Congress “touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.”  Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Finally, state law is preempted to the extent that it actually conflicts with federal law. Thus, the Court has found preemption where it is impossible for a private party to comply with both state and federal requirements, see, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963), or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. See United States v. Union Central Life Insurance Co., 368 U.S. 291 (1961) (I.R.C. ' 6323(f) preempted state law requiring that NFTL contain a description of the taxpayer’s property). See generally Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941)(if preemption exists, state law cannot even complement federal law).
The Supremacy Clause,secures’ federal rights by according them priority whenever they come in conflict with state law.”  Chapman v. Houston Welfare Rights Organization441 U. S. 600441 U. S. 613. Pp. 493 U. S. 107-108.
Supremacy Clause Evolution
Modern preemption doctrine derives from Supremacy Clause jurisprudence, which has evolved from the nation’s founding to present day.  6 See Mary J. Davis, Unmasking the Presumption in Favor of Preemption, 53 S.C. L. Rev. 967, 972–75 (2002) (noting the “long history” of preemption rooted in the Supremacy Clause and the expansion of preemption doctrine following “the unprecedented legislative activity of the post-Depression era”); see also Verizon Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 642 (2002); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 108 (1989); Shaw, 463 U.S. at 96 n.14; Ex parte Young, 209 U.S. 123, 149–50 (1908); Gibbons, 22 U.S. at 1, 211.

When faced with conflicting state and federal law, the Court need only to turn to the Supremacy

Clause to find that federal law controls:  This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  See U.S. Const. art. VI, cl. 2; G. Edward White, Revisiting the Ideas of the Founding, 77 U. Cin. L. Rev. 969, 975–76 (2009).
The combination of a Supremacy Clause and a Supreme Court to enforce it brought federal preemption into the fabric of American jurisprudence.  See generally Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816) (asserting jurisdiction over a state court decision involving a federal question and holding that a federal treaty preempted state action); White, supra note 38, at 980 (“Through the idea of enumerated federal powers, reserved state powers, and the Supremacy Clause, the drafters of the Constitution said, in effect, to state legislatures: we will offer you a model of government designed to function, and, by the way, if it passes laws that conflict with your laws, you will have to obey them.”). Additionally, the Supremacy Clause ensured a federalist model for the new nation because it operated in conjunction with Article I of the Constitution, which conferred power to appoint Senators on state legislatures. See Bradford R. Clark, Constitutional Compromise and the Supremacy Clause, 83 Notre Dame L. Rev. 1421, 1432 (2008). Small states had a guarantee, therefore, that the laws the federal government passed, which were supreme by definition, were made with state participation. See id.
In 1824, Chief Justice John Marshall recognized in Gibbons v. Ogden that a state law contrary to a federal law must yield to its federal counterpart because “the framers of our constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it” by insertion of the Supremacy Clause in the Constitution.  22 U.S. at 210–11. The Supremacy Clause is enforceable in state as well as federal courts. Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 507 (1954) (“The supremacy clause, of course, makes plain that if a state court undertakes to adjudicate a controversy it must do so in accordance with whatever federal law is applicable.”). Indeed, until federal question jurisdiction was established in 1875, state courts handled the bulk of Supremacy Clause issues. See Peter L. Strauss, The Perils of Theory, 83 Notre Dame L. Rev. 1567, 1588 (2008).
The preemption doctrine under the Supremacy Clause gained full bodied status in the twentieth century when expansion of Congress’s power under the Commerce Clause brought greater numbers of state laws into conflict with federal statutes, requiring the Court to establish a nuanced way to handle this sensitive area of federalism.  See Mary J. Davis, Unmasking the Presumption in Favor of Preemption, 53 S.C. L. Rev. 967, 972–75 (2002) (noting the “long history” of preemption rooted in the Supremacy Clause and the expansion of preemption doctrine following “the unprecedented legislative activity of the post-Depression era”); see also Verizon Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 642 (2002); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 108 (1989); Shaw, 463 U.S. at 96 n.14; Ex parte Young, 209 U.S. 123, 149–50 (1908); Gibbons, 22 U.S. at 1, 211.
The Court, broadly interpreting congressional purpose in the early twentieth century, often found federal legislation to “occupy the field,” thus preempting state laws.  Id. at 974.
All preemption cases, whether preemption is asserted prospectively or defensively, turn on the effect of the Supremacy Clause. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (noting that in light of the power of the Supremacy Clause “the purpose of Congress is the ultimate touchstone in every pre-emption case”).
The Framers inserted the Supremacy Clause into the Constitution to give explicit voice to the idea of federalism—that the nation would be comprised of sovereign states free to make their own laws, except that if those laws conflicted with federal law then federal law would control.  White, supra note 38, at 978–79.  The Supremacy Clause constitutionalized federal supremacy.  See id.
As stated herein:  Federal preemption is based on the Supremacy Clause of the United States Constitution, which provides that federal law is the supreme law of the land. Preemption can occur expressly, through the plain words of a federal statute, or can be implied, as when a court discerns that Congress intends to occupy an entire field of regulation, or when a court concludes that a state law conflicts with a federal purpose or the means of achieving that purpose. A federal statute can be preemptive on its face or as applied.
There are four species of federal preemption:  express, conflict, obstacle, and field.   Conflict preemption arises when simultaneous compliance with both state and federal law is impossible.  Obstacle preemption arises when state law is an obstacle to the accomplishment and execution of the full purposes and objective of federal law.  Bronco v. Wine Co. v. Jolly (2004) 33 Cal.4th 943, 955.  The state laws being used to charge and prosecute Kelley Lynch, including alleged violations of restraining orders and/or the intent to annoy, are preempted by federal law.  The State of California has in effect criminalized compliance with federal tax and corporate laws.  Congress clearly intended to preempt state law with federal tax laws and compliance with same.  This case involves all four species of federal preemption.  State law has been preempted here because:  1) the law’s subject is one exclusively within the power of the federal government; 2) there is a conflict between the state and federal laws such that simultaneous compliance with both is impossible; and, 3) the state laws impedes in many ways achieving the goals of the federal laws and policies underlying them.   Furthermore, the People are not pursuing any legitimate government purpose, including with respect to the State of California itself, by promoting non-compliance with tax laws, the reporting of income and filing of individual and/or corporate tax returns, and/or condoning tax evasion and fraud.  This is not a legitimate function and/or purpose of government.




In Scripps Health v. Marin, a California Court of Appeals held that Section 527.6, related to
harassment restraining orders, “applies only to natural persons.  Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333, 85 Cal.Rptr.2d 86; Diamond View Limited v. Herz (1986) 180 Cal.App.3d 612, 618-619, 225 Cal.Rptr. 651. “The Legislature intended to provide employers with the remedy of injunctive relief to protect their employees by preventing unlawful violence where it is reasonably likely such unlawful violence may occur in the future.”  Scripps Health v. Marin, supra, 72 Cal.App.4th at p. 335, 85 Cal.Rptr.2d 86. 
Leonard Cohen has not functioned as Kelley Lynch’s employer since approximately October 21, 2004, did not seek injunctive relief as an employer, and no corporation at issue has obtained an injunction related to itself, its officers, any federal tax matters partner, and/or any employee whatsoever.  That is true for all corporations at issue herein whether or not they have minimal or no ties whatsoever to California.  
Furthermore, there is no protected relationship in federal VAWA that would apply to a corporation, its officers, a federal tax matters partner, and/or any employee of same.  Further issues related to corporations at issue herein with no ties to California have been implicated by the prosecution’s novel arguments.  Finally, although since November 2004 Lynch has only seen Cohen a handful of times during court appearances, according to this Court, the nature of their relationship changed on May 25, 2011.  Los Angeles Superior Court has merely elected to assign Lynch a dating relationship with a man who sexually harassed, sexually assaulted, and exposed himself to Lynch routinely for years.

The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.”  The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states.
Due process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power.  Thus, where a litigant had the benefit of a full and fair trial in the state courts, and his rights are measured, not by laws made to affect him individually, but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result. Marchant v. Pennsylvania R.R., 153 U.S. 380386 (1894).
Exactly what procedures are needed to satisfy due process, however, will vary depending on the circumstances and subject matter involved.   Hagar v. Reclamation Dist., 111 U.S. 701708 (1884).  “Due process of law is [process which], following the forms of law, is appropriate to the case and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law." Id. at 708; Accord, Hurtado v. California110 U.S. 516537 (1884).
 One of the basic criteria used to establish if due process is satisfied is whether such procedure was historically required in like circumstance.
The Requirements of Due Process.—
Although due process tolerates variances in procedure "appropriate to the nature of the case,”  Mullane v. Central Hanover Trust Co., 339 U.S. 306313 (1950).], it is nonetheless possible to identify its core goals and requirements. First, “procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”   Carey v. Piphus435 U.S. 247259 (1978). “Procedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases.” Mathews v. Eldridge424 U.S. 319344 (1976).
Thus, the required elements of due process are those that “minimize substantively unfair or mistaken deprivations” by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests.   Fuentes v. Shevin407 U.S. 6781 (1972). At times, the Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one's interests even if one cannot change the result.  Carey v. Piphus435 U.S. 247266-67 (1978); Marshall v. Jerrico, Inc., 446 U.S. 238242 (1980); Nelson v. Adams, 120 S. Ct. 1579 (2000) (amendment of judgement to impose attorney fees and costs to sole shareholder of liable corporate structure invalid without notice or opportunity to dispute).
The core of these requirements is notice and a hearing before an impartial tribunal. Due process may also require an opportunity for confrontation and cross-examination, and for discovery; that a decision be made based on the record, and that a party be allowed to be represented by counsel.
Notice & A Hearing
Notice. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”  Mullane v. Central Hanover Trust Co., 339 U.S. 306314 (1950). See also Richards v. Jefferson County, 517 U.S. 793(1996) (res judicata may not apply where taxpayer who challenged a county's occupation tax was not informed of prior case and where taxpayer interests were not adequately protected).

The notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest.  Goldberg v. Kelly, 397 U.S. 254267-68 (1970).  Ordinarily, service of the notice must be reasonably structured to assure that the person to whom it is directed receives it.  Armstrong v. Manzo, 380 U.S. 545550 (1965); Robinson v. Hanrahan, 409 U.S. 38 (1974); Greene v. Lindsey, 456 U.S. 444 (1982).

Hearing.   “Some form of hearing is required before an individual is finally deprived of a property [or liberty] interest.”   Mathews v. Eldridge, 424 U.S. 319333 (1976). “Parties whose rights are to be affected are entitled to be heard.”  Baldwin v. Hale, 68 U.S. (1 Wall.) 223233 (1863).  This right is a “basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment …”  Fuentes v. Shevin, 407 U.S. 6780-81 (1972). See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123170-71 (1951) (Justice Frankfurter concurring).  Thus, the notice of hearing and the opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.”   Armstrong v. Manzo380 U.S. 545552 (1965).

There is a formidable body of constitutional and California law precluding the summary deprivation of property without due process, i.e., without notice and hearing. That law was forged in the context of overreaching creditor’s remedies in which alleged debtors found themselves summarily deprived of the use of their property without deliberative court proceedings.  See Randone v. Appellate Department (1971) 5 Cal.3d 536 [96 Cal. Rptr. 709, 488 P.2d 13] [prejudgment attachment procedure unconstitutional without notice and hearing]; Blair v. Pitchess (1971) 5 Cal.3d 258 [96 Cal. Rptr. 42, 486 P.2d 1242] [same for claim and delivery]; see also Sniadach v. Family Finance Corp. (1969) 395 U.S. 337 [23 L. Ed. 2d 349, 89 S. Ct. 1820] [summary attachments without notice and hearing unconstitutional].)” Gale v. Superior Court (2004) 122 Cal.App.4th 1388, 1393.
The actions of the prosecution in this case have served to deprive Kelley Lynch of substantial property rights that would be represented in the tax documents Leonard Cohen and the corporations he controlled have not as yet provided her.  False and fraudulent information, conveyed to jurors by the prosecution, with respect to federal tax matters appeared in news accounts of the 2012 proceedings.  On April 18, 2012, the LA Times wrote an article that contained the following statements:  “Attorneys for Lynch argued throughout the trial that Lynch's messages contained legitimate requests for tax documents. Cohen and his attorneys, however, said Lynch has long been in possession of documents she requested.”  On January 13, 2017, DCA Streeter informed this Court, after blatantly misleading jurors throughout the 2012 proceedings, that the federal tax matters that remain at issue were Lynch’s prior “excuse.”  Federal tax laws, and compliance with same, are not an “excuse.”  See Exhibit D:  January 13, 2017 Hearing Transcript, attached hereto and made a part hereof.
The following quote was taken from the January 13, 2017 preliminary hearing in this case. 

MS. STREETER: So the issue she talked about, the tax return, is the same issue she raised in the prior
case when she was convicted, and it's a issue she's been raising since the year 2000, Your Honor. There is no litigation between she and Mr. Rice -- Miss Rice and Mr. Kory.

The prosecution’s conduct, both past and present, has “so infected the trial [and all proceedings] 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 [questionable argument by the prosecution that the defense wanted the jury to find guilt on a lesser deemed cured by a specific corrective jury instruction.]

In the present situation, federal law explicitly preempts state law.  Additionally, Congress intended that the federal government exclusively occupy the field at issue.  Finally, there is indeed an actual conflict with and obstruction of federal law.  Kelley Lynch contends the prosecution has committed misconduct in violation of her state and federal constitutional rights to confrontation, due process, and a fair trial. 
For these reasons, Kelley Lynch respectfully moves this Court to enter an order granting the motion and prohibiting the People from making improper – or blatantly false - opening or closing statements or other improper remarks in this case. 
Dated:  16 November 2017                                         Respectfully submitted,

                                                                                    KELLEY LYNCH, in Propria Persona


CASE NO. BQ033717

Case Number:  BQ033717
Filing Date:  05/25/2011
Case Type:  Civil Petition - TRO/Dom Violence (General Jurisdiction)
Status:  Pending

Future Hearings 



RICE MICHELLE L. - Attorney for Petitioner

Documents Filed (Filing dates listed in descending order)
04/04/2012 Request-Copies
05/25/2011 Order-Reg. of Out-of-State DV [Domestic Violence]
Filed by Petitioner