Wednesday, September 27, 2017

Kelley Lynch's Severance Motion filed w/ LA Superior Court 09.27.17

MEMORANDUM OF POINTS & AUTHORITIES

BACKGROUND & PROCEDURAL HISTORY

            Kelley Lynch has been falsely accused and charged with violating a restraining order issued to deceased singer-songwriter Leonard Cohen and allegedly sending illegitimate communications – with the “intent to annoy” - to Robert Kory, Michelle Rice, IRS, FBI, DOJ, Treasury, ICE, CIA, Senate Judiciary, FTB, and others.  The issue with respect to the conflicting Colorado civil harassment order and California domestic violence order remains unresolved. 
            She now moves to sever issues related to so-called uncharged offenses, acts, unrelated issues, all evidence, and hearsay statements the People have introduced into this case involving same.  These uncharged offenses and attendant evidence and/or hearsay statements, addressed more fully herein, unfairly prejudice Lynch’s defense, violate her right to due process, and additional constitutions rights, including a fair trial. 
ARGUMENT

The purpose of this motion is to sever issues.  The uncharged offenses and/or issues, raised through unauthenticated, fabricated electronic communications and/or hearsay with respect to alleged communications between the City Attorney and District Attorney of Los Angeles, have introduced the following irrelevant, immaterial, inflammatory, and prejudicial issues into this case:  former DA Steve Cooley, Phil Spector’s murder trial and conviction, Dr. Dre’s song “Natural Born Killaz,” Oliver Stone, Stephen Gianelli’s libelous statements about Lynch, Phil Spector’s legal team (specifically Dennis Riordan and Bruce Cutler), Sandra Jo Streeter’s request to have Lynch drugged and committed (to a domestic violence facility) over her letters to Bruce Cutler, a Valentine card sent to FBI and DOJ as an example of a false threat scam being run out of Los Angeles and requests for investigations into same, the fact that Streeter broke a podium during the 2012 proceedings and/or Lynch’s alleged personal opinions regarding Streeter’s fashion sense, a hearsay parody email sent to Bruce Cutler that involves Steve Cooley and federal agencies Lynch has communicated with extensively, the official use of perjury to obtain convictions, Lynch’s presidential campaign platform, the appointment of her FBI and/or CIA directors, a possible wedding in the White House Rose Garden, the appointment of her Attorney General and request that he or she pursue charges against former DA Steve Cooley, the ACLU’s position on Steve Cooley’s demands for speedy executions of people using a questionable drug, witnesses who have lied under oath (during Lynch’s 2012 trial, other proceedings, and the Phil Spector murder case), CIA’s threat disposition matrix and drone program (and individuals who are in their matrix database), a federal tax controversy related to allegations that Leonard Cohen committed civil and criminal tax fraud, and so forth. 
Motions to sever ask for separate trials. A motion to “sever” asks the court to order separate trials of issues, causes of action, or parties joined in a single action. The purpose of severence is to avoid prejudice, promote convenience, or permit greater expedience and economy.  California Code of Civil Procedure Section 1048(b).
Severance or a separate trial is a procedural device that allows the court to divide a lawsuit into two or more parts, establish the order in which they will be resolved, and resolve them separately.  Severance can be an important way to improve trial efficiency because it allows the court to avoid adjudicating every issue in a case when deciding a subset of the issues may be dispositive.  This motion seeks to sever matters related to charged and uncharged alleged offenses, the issues raised with respect to them, and related evidentiary matters.  Admission of the so-called uncharged offenses and evidence related to same would unfairly prejudice Kelley Lynch.  Additionally, the Phil Spector case was and remains highly inflammatory and the introduction of his murder trial into the case in chief will confuse jurors and further prejudice her.  Lynch contends that the People have introduced these issues into their case – through fabricated email evidence and hearsay statements - in an attempt to mitigate issues, for purposes of retaliation and to apply the res judicata doctrine to issues that have not been litigated and have nothing whatsoever to do with an alleged restraining order violation and/or the legitimacy of Lynch’s alleged communications.  That would include, but is not limited to, her formal claims against the City and County of Los Angeles.  Lynch notified the City and County of Los Angeles that she intended to pursue a federal lawsuit against them.  She maintains that the City and County of Los Angeles are using this proceeding to mitigate liability. 
Severance would be appropriate to promote efficiency, avoid prejudice, improve the accuracy of the adjudication, and to ensure that all offenses – both charged and uncharged - are properly and fully litigated.  It would also allow the Court to determine how the proceedings should be structured, which claims or issues should be tried first, whether or not there should be a partial stay of discovery, whether or not separate trials should take place before the same or different juries, and what the most appropriate scope of severance (complete severance or separate trials) would be.  The inclusion of the uncharged offenses, prior bad acts, evidence related thereto, and/or the false accusations have now raised multiple issues that would be better resolved in separate trials.  The Court may order a separate trial of one or more separate issues, offenses, and/or charges.  This would preserve Defendant’s right to a jury trial, due process, litigation on the merit of all issues, and fair adversarial proceedings. 
Defendant Kelley Lynch believes the issues involving the Phil Spector case, former District Attorney Steve Cooley, whether or not Phil Spector was set up, Deputy City Attorney Sandra Jo Streeter’s conduct throughout all proceedings – including her request to have Lynch drugged and committed to a domestic violence facility – and Cohen’s tax fraud, and so forth should be tried first and separately from the charge offenses in the People’s complaints.  This would narrow the courtroom debate and focus on specific issues.  For example, with respect to the charged offenses, the debate could focus on alleged restraining order violations and/or the intent and legitimacy of Lynch’s alleged communications.  With respect to the uncharged offenses and/or evidence, the debate could focus on the Phil Spector murder case, whether or not he is in fact innocent, former DA Steve Cooley and Cohen’s possible informant status, any quid pro quo between Cohen and government actors in the City and/or County of Los Angeles, DCA Sandra Jo Streeter’s conduct, criminal witness tampering and retaliation, Dr. Dre’s “Natural Born Killaz” lyric, Lynch’s presidential campaign platform that set forth her interest in tackling political corruption, the appointment of Lynch’s FBI and CIA directors, California’s perjury statute as it relates to government officials, whether or not the U.S. Attorney General should prosecute Steve Cooley to the fullest extent of the law, CIA’s drone program and threat disposition matrix, CIA’s MK Ultra program and Cohen’s position that he was a participant, the ACLU’s arguments in response to Steve Cooley’s demands for swift executions using a questionable drug, parodies involving government actors, political speech, grievances to the government and retaliation over same, privileged communications with federal government agencies and other authorities, a federal tax controversy related to Leonard Cohen and corporations he controlled, witnesses who have lied under oath, and so forth.  Introducing these extraneous issues into the case in chief would serve to gravely prejudice Lynch and confuse jurors with endless erroneous, complex, and unrelated issues and evidence.  These alleged uncharged offenses, and the attendant evidence (fabricated emails and hearsay) related to same, have no probative value with respect to the charged offenses. 
For all of the reasons detailed herein, Kelley Lynch requests that this motion to sever be granted. 
General Legal Principles
            The trial court has the discretion to sever issues.  The trial court also has the discretion to admit evidence, or in this case evidence related to uncharged offenses such as witness dissuasion with respect to Streeter and/or credible threats with respect to Cooley, ostensibly committed by a defendant other than the one for which she is charged, if such evidence is relevant to prove some fact at issue, and if the probative value of the evidence outweighs its prejudicial effect.  “When reviewing the admission of evidence of other offenses, a court must consider (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence if relevant.  This type of evidence can be irreparably damaging and therefore “if the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.”  People v. Hawkins (1995) 10 Cal.4th 920, 951, 42 Cal.Rptr.2d 636, 897 P.2d 574.  It remains unclear what the relationship between the charged and uncharged offenses are and the People should be forced to clarify that issue. 
Sever & Prove Each Element of Each So-called Uncharged Act, Offense and/or False Accusation

The elements the prosecution must prove with respect to the fabricated email evidence and/or hearsay communications related to alleged witness dissuasion (Sandra Jo Streeter) and/or criminal threats (former DA Steve Cooley) should be the subject of an entirely separate proceeding where Lynch is afforded a fair hearing, ability to confront her accusers, discovery related to same, the appropriate standard of proof (beyond a reasonable doubt), separate investigations, and so forth.  Exhibit A:  Elements of Witness Dissuasion and Criminal Threats, attached hereto and made a part hereof. 
            The admission of other crimes evidence is governed by Section 1101.  At this time, Kelley Lynch is asking the Court to sever the uncharged offenses and related evidence from the main case.
Section 1101:  “Subdivision (a) of Section 1101 prohibits admission of evidence of a person’s character, including evidence of character in the form of specific instances of uncharged misconduct, to prove the conduct of that person on a specified occasion.  Subdivision (b) of Section 1101 clarifies, however, that this rule does not prohibit admission of evidence of uncharged misconduct when evidence is relevant to establish some fact other than the person’s character or disposition.”  People v. Ewoldt (1994) 7 Cal.4th 380, 393, 27 Cal.Rptr.2d 646, 867 P.2d 757.  The categories listed in section 1101, subdivision (b), are examples of facts that legitimately may be proved by other-crimes evidence, but the list is not exclusive.”  People v. Catlin (2001) 26 Cal.4th 81, 146, 109 Cal.Rptr.2d 31, 26 P.3d 357. Hence, “although evidence of prior offenses may not be introduced solely to prove criminal disposition or propensity such evidence may properly be admitted whenever it tends logically, naturally, and by reasonable inference to establish any fact material for the People or to overcome any material matter sought to be proved by the defense.”  People v. Montalvo (1971) 4 Cal.3d 328, 331–332, 93 Cal.Rptr. 581, 482 P.2d 205.  Lynch maintains that the prosecution is attempting to introduce the uncharged offenses (and attendant issues raised in connection with those offenses) to prove criminal disposition and/or propensity.  The uncharged offenses do not tend to logically, naturally, and/or by reasonable inference establish any fact in this case. 
Evidence Code section 1101, subdivision (b)
Evidence Code section 1101, subdivision (b), permits “the admission of evidence that a
person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident), or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act.” (Evid. Code, § 1101, subd. (b).)
While Evidence Code section 1101, subdivision (a), prohibits admission of a person’s character, whether in the form of opinion, reputation evidence, or evidence of specific acts, to prove a person’s conduct on a specified occasion, Evidence Code section 1101, subdivision (b) allows for admission of evidence of a person’s prior acts when offered to prove a fact other than his or her disposition to commit the contested act. Such prior misconduct evidence may be offered to prove such facts as motive, opportunity, intent, preparation, plan, knowledge, identity, the absence of mistake or accident or lack of a reasonable belief that a person consented to engaging in a sexual act.  Lynch has engaged in no prior misconduct and did not transmit the fabricated email evidence at issue in this case.
Similarity Requirements
In People v. Ewoldt (1994) 7 Cal.4th 380, 401, the California Supreme Court held that evidence of a defendant’s uncharged misconduct is relevant where the uncharged misconduct and the charged offense are sufficiently similar to support the inference that they are manifestations of a common design or plan. The court distinguished between the nature and degree of similarity required in order to establish a common design or plan, as opposed to that required to prove intent or identity.  The court found the least degree of similarity between the uncharged act and charged offense is required to prove intent.  Id. at p. 402.  In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant “‘probably harbored the same intent in each instance.’”  Ibid.
A greater degree of similarity is required to prove existence of a common design or plan.  “To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.”  Id. at p. 403.  Prior bad acts may be admitted if they demonstrate “circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts.  Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense.” Ibid.  Finally, the court stated that the greatest degree of similarity is required to prove identity.  For identity to be established, the uncharged conduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts.  Id. at p. 403. “‘The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.’” (Ibid.)
There is no similarity whatsoever between the charged offenses and alleged uncharged offenses or evidence and issues related thereto. 
Admission of Uncharged Acts Subject to Evidence Code Section 352 Balancing
The California Supreme Court has also held that even evidence that meets the requirements of Evidence Code section 1101, subdivision (b), must still be subjected to a weighing under Evidence Code section 352 prior to being admitted.  Id. at p. 404.  Ewoldt reasoned: Evidence of uncharged offenses “is so prejudicial that its admission requires extremely careful analysis.”  People v. Smallwood (1986) 42 Cal.3d 415, 428, 228 Cal.Rptr. 913, 722 P.2d 197; see also People v. Thompson (1988) 45 Cal.3d 86, 109, 246 Cal.Rptr. 245, 753 P.2d 37.  Since “substantial prejudicial effect [is] inherent in [such] evidence,” uncharged offenses are admissible only if they have “substantial probative value.”  People v. Thompson (1980) 27 Cal.3d 303, 318, 165 Cal.Rptr. 289, 611 P.2d 883.  To be admissible such evidence “must not contravene other policies limiting admission, such as those contained in Evidence Code section 352.”  People v. Thompsonsupra, 45 Cal.3d at p. 109, 246 Cal.Rptr. 245, 753 P.2d 37.  The probative value of the so-called evidence of defendant’s uncharged offenses is substantially outweighed by the probability that its admission [would] ... create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.  Evid. Code, § 352. 
Due Process Protects an Accused Against Conviction Except Upon Proof Beyond A Reasonable Doubt of Every Element of the Crime

            In 1970, the United States Supreme Court held in In re Winship that the due process clauses of the Fifth and Fourteenth Amendments “[protect] the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”  In re Winship397 U.S. 358364 (1970). See also Sullivan v. Louisiana508 U.S. 275 (1993) Sixth Amendment guarantee of trial by jury requires a jury verdict of guilty beyond a reasonable doubt.  The reasonable doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence—that bedrock “axiomatic and elementary” principle whose “enforcement lies at the foundation of the administration of our criminal law.”  397 U.S. at 363 (quoting Coffin v. United States156 U.S. 432453 (1895). Justice Harlan's Winship concurrence, id. at 368, proceeded on the basis that inasmuch as there is likelihood of error in any system of reconstructing past events, the error of convicting the innocent should be reduced to the greatest extent possible through the use of the reasonable doubt standard.  In many past cases, this standard was assumed to be the required one, [Miles v. United States103 U.S. 304312 (1881); Davis v. United States160 U.S. 469488(1895); Holt v. United States218 U.S. 245253 (1910); Speiser v. Randall357 U.S. 513525-26 (1958)] but because it was so widely accepted only recently has the Court had the opportunity to pronounce it guaranteed by due process.   In addition to Winshipsee also Estelle v. Williams425 U.S. 501503 (1976); Henderson v. Kibbe431 U.S. 145153 (1977); Ulster County Court v. Allen442 U.S. 140156 (1979); Sandstrom v. Montana442 U.S. 510520-24 (1979) on the interrelated concepts of the burden of the prosecution to prove guilt beyond a reasonable doubt and defendant's entitlement to a presumption of innocence, see Taylor v. Kentucky436 U.S. 478483-86 (1978), and Kentucky v. Whorton441 U.S. 786 (1979).  The presumption of innocence is valuable in assuring defendants a fair trial,  [E.g., Deutch v. United States367 U.S. 456471 (1961). See also Cage v. Louisiana498 U.S. 39(1990). 
In state criminal trials, the Due Process Clause of the Fourteenth Amendment protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.  Inasmuch as due process requires the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged,* the Court held in Mullaney v. Wilbur  [421 U.S. 684 (1975). See also Sandstrom v. Montana442 U.S. 510520-24 (1979)] that it was unconstitutional to require a defendant charged with murder to prove that he acted “in the heat of passion on sudden provocation” in order to reduce the homicide to manslaughter. The Court indicated that a balancing of interests test was to be employed to determine when the due process clause required the prosecution to carry the burden and when some part of the burden might be shifted to the defendant, but the decision called into question the practice in many States under which some burdens of persuasion were borne by the defense, and raised the prospect that the prosecution must bear all burdens of persuasion, a significant and weighty task given the large numbers of affirmative defenses.
            While due process requires that each element of a crime be proved beyond a reasonable doubt, uncharged offenses introduced to show the existence of some element of the charged crime need only be proved by a preponderance of substantial evidence. This unduly prejudices Lynch, violates her rights to due process, and undermines her ability to have a fair trial. 
Character Evidence
In general, under Evidence Code Section 1101, so-called “character evidence” is not admissible in a California criminal jury trial to show that a person acted in accordance with his/her character on a particular occasion.  The prosecutor may not introduce evidence of alleged bad acts committed in the past—criminal or otherwise—in order to show that the defendant committed the crime with which he/she has been charged.  Id.  See also People v. Terry (1970) 2 Cal.3d 362, 400. 
One relevant exception is when the defendant is charged with California domestic violence.  Then the prosecutor may introduce evidence that s/he has committed similar crimes in the past.  In a domestic violence case, the prosecutor may introduce evidence that you committed a similar crime in the past, even though such evidence would normally be inadmissible character evidence.  This exception is set forth in Evidence Code Section 1109.  Lynch has never been charged with domestic violence, there have never been findings related to domestic violence, and the Colorado order was a civil harassment non-domestic violence order granted on the basis of a business relationship.  Permitting the prosecutors to avail themselves of Evidence Code Section 1109 would violate Lynch’s right to due process. 
Kelley Lynch has never been charged with domestic violence, there are no findings related to domestic violence, the Colorado order is not a domestic violence order, and, Cohen and Lynch were not in a statutory required dating relationship.  Therefore, any and all attempts to use Section 1109 does indeed violate Lynch’s right to due process.  The jurors in Lynch’s 2012 trial were advised that Lynch violated the Colorado order.  The Colorado order is not a domestic violence order. 
Kelley Lynch Has No Common Plan or Design

Evidence Code Section 1101(b) permits the use of uncharged crimes to prove common plan or design.  People v. Dancer (1996) 45 Cal.App.4th 1677, 1688. Evidence of a common plan or design is admissible to show that the criminal act alleged (in this case, the homicide of victim Clarkson) in fact occurred.  People v. Ewoldt (1994) 7 Ca1.4th 380, 393 & 399; People v. Dancer, supra, 45 Ca1.App.4th at 1688.
While the words “common plan” or “common design” may suggest a single, continuing plot to commit a series of connected crimes, the California Supreme Court has speci´Čücally rejected such a restrictive approach.  People v. Ewoldt, supra, 7 Ca1.4th at pp. 399 & 401; People v. Castillo (1997) 53 Cal.App.4th 416, 426). Instead, common plan or design should be seen simply as a similar modus operandi pursuant to which the defendant commits a series of similar, though not necessarily connected, crimes.  People v. Ewoldt, supra, 7 Ca1.4th at 399 403). Evidence that a defendant committed uncharged crimes similar to the charged offense is relevant if it circumstantially demonstrates that the defendant committed the charged offense pursuant to the same plan or design used to commit the uncharged crimes.  Id. at 402.
In order to show a common plan or design, the uncharged acts must simply share with the
charged offense a concurrence of common features such that the various acts are naturally to be explained as individual manifestations of a general plan. (Id. at 403). The common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan revealed need not be distinctive or unusual. (Ibid). The level of similarity required is greater than that required to show a defendant’s intent, but less than the distinctiveness required to prove identity. (Id. at 402).
REQUIREMENTS FOR JOINDER OF CHARGES

Section 954 of the Penal Code sets forth the requirements for joinder of criminal charges. It provides in pertinent part: "An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts .... [Provided], that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately."  Kelley Lynch argues that failure to sever the uncharged offenses, whether or not they are in the information complaints, would be an egregious due process violation.  The inclusion of the uncharged offenses and these issues raised therein would unduly prejudice Lynch particularly as the Phil Spector case is highly inflammatory and the former District Attorney’s involvement in Lynch’s 2012 trial was tantamount to criminal witness intimidation and may have involved a quid pro quo with respect to Leonard Cohen’s testimony with respect to Phil Spector.  People v. Poon, supra125 Cal. App. 3d 55; People v. Kemp (1961) 55 Cal. 2d 458, 477 [11 Cal. Rptr. 361, 359 P.2d 913]; People v. Meneley, supra, 29 Cal.App.3d at p. 52.)
Prejudice Requires Severance
If clearly established by defendant, prejudice may require severance, even though joinder is statutorily permissible under section 954. As was noted in Coleman v. Superior Court (1981) 116 Cal. App. 3d 129, 135 [172 Cal. Rptr. 86], certiorari denied 451 U.S. 988 [68 L. Ed. 2d 846, 101 S. Ct. 2325], “the determination that the offenses are ‘joinable’ under section 954 is only the first stage of analysis because section 954 explicitly gives the trial court discretion to sever offenses or counts ‘in the interest of justice and for good cause shown.’ ‘Statutory permission to consolidate does not supply a complete answer, for section 954 gives the trial court discretionary power to order separate trials in the interests of justice. Refusal of severance may be prejudicial error if discretion is abused.’ [Citing People v. Blalock (1965) 238 Cal. App. 2d 209, 222 (47 Cal.Rptr. 604).]”
Relevance & Propensity

As noted in People v. Thompson (1980) 27 Cal. 3d 303, 316 [165 Cal. Rptr. 289, 611 P.2d 883], "Evidence Code section 1101, subdivision (a) expressly prohibits the use of an uncharged offense if the only theory of relevance is that the accused has a propensity (or disposition) to commit the crime charged and that this propensity is circumstantial proof that the accused behaved accordingly on the occasion of the charged offense.  Subdivision (a) does not permit a court to balance the probative value of the evidence against its prejudicial effect. The inference of a criminal disposition may not be used to establish any link in the chain of logic connecting the uncharged offense with a material fact. If no theory of relevance can be established without this pitfall, the evidence of the uncharged offense is simply inadmissible.”  Lynch does not have a criminal disposition.  Any such disposition has been created by the use of restraining orders as tactics, a fabricated narrative that continues to be expanded upon, and a fictitious course of conduct. 
It Would Be Impossible For Jurors Not to Aggregate All Evidence

A principal concern at issue herein lies in the danger that the jury would aggregate all of the evidence, though presented separately in relation to each charge, and convict on both charges in a joint trial; whereas, at least arguably, in separate trials, there might not be convictions on both charges. Joinder in this case will make it difficult not to view the evidence cumulatively. The result might very well be that the two cases would become, in the jurors' minds, one case which would be considerably stronger than either viewed separately.
            The immateriality and irrelevance of the issues and/or offenses to this case as well as the substantial prejudice to Kelley Lynch warrants severance under Section 954 of the Penal Code.  The alleged offenses are not of the same class and the other offenses alleged to have been committed are not connected together in their commission.  Therefore, these issues and/or offenses are not properly joined under Section 954.  Section 954 gives the court discretion to order separate trials in the interest of justice.  People v. Blalock (1965) 238 Cal. App. 2d 209, 222 [47 Cal. Rptr. 604].  Such a motion is an appeal to the sound discretion of the trial court.  People v. Duane (1942) 21 Cal. 2d 71, 78 [130 P.2d 123]; People v. Isby (1947) 30 Cal. 2d 879, 897 [186 P.2d 405].  “If established, prejudice may require severance, even though joinder of the offenses is permissible under section 954. ... “  People v. Poon (1981) 125 Cal. App. 3d 55, 69 [178 Cal. Rptr. 375]. 
Prejudice, Inflammatory Arguments & Confused Unrelated Issues
A ruling on a motion to sever is based on a weighing of the probative value as against the prejudicial effect, but in the weighing process the beneficial results from joinder are added to the probative-value side.
A demonstration of substantial prejudice by a defendant may be sufficient to warrant severance of charges which could otherwise properly be joined. When substantial prejudice is clearly shown, a trial court's denial of a defendant's motion for severance constitutes an abuse of discretion under Penal Code section 954. Fundamental principles of due process compel such a conclusion.
The pursuit of judicial economy and efficiency may never be used to deny a defendant his right to a fair trial. (In re Anthony T. (1980) 112 Cal. App. 3d 92, 102 [169 Cal. Rptr. 120].)
The refusal to sever these issues and/or offenses would deny Kelley Lynch the fundamental right to due process and a fair trial. 
CONCLUSION

            The Court should grant this severance motion and order separate trials on the charged and uncharged offenses.  The alleged uncharged offenses are being used to bolster the charges brought and insert extraneous issues into this case.  Joining the charged and uncharged offenses violates Kelley Lynch’s right to a fair trial under the Fifth and Sixth Amendment to the United States Constitution.  An accused retains federal due process rights even after the passage of Penal Code Section 954. 
Dated:  25 September 2017                                         Respectfully submitted,



                                                                                    _________________________________
                                                                                    Kelley Lynch


DECLARATION OF KELLEY LYNCH


I, KELLEY LYNCH, declare:

1.        I am a citizen of the United States who currently resides in Los Angeles, California.  I am over the age of 18 years.  I have personal knowledge of the facts contained in this declaration and if called upon to testify I could and would testify competently as to the truth of the facts stated herein.
2.         I am submitting this declaration in support of my motion to sever certain uncharged offenses, acts, evidence, false accusations, and extraneous issues from the charged offenses.  The fabricated email evidence related to Sandra Jo Streeter, and the hearsay with respect to an alleged email sent Bruce Cutler (evidently about Steve Cooley), discussions about these matters between the City Attorney and District Attorney, have introduced the following issues into this case:  CIA, Streeter’s conduct and wardrobe during the 2012 proceedings, Streeter gushing into a cell phone about Leonard Cohen and breaking the podium during the prior trial, witnesses who lie under oath, Steve Cooley and potential prosecution by the U.S. Department of Justice, a federal criminal tax controversy related to Leonard Cohen and corporations he controlled, Phil Spector’s murder conviction and his innocence, Dr. Dre’s song “Natural Born Killaz,” Oliver Stone, endless criminal harassment and slander related to Stephen Gianelli, the use of the english language words “liars” and “thugs,” Phil Spector’s legal team (specifically Bruce Cutler and Dennis Riordan), a Valentine card sent FBI and DOJ as an example of a false threat scam being run out of Los Angeles and request for investigations into same, my 2012 trial being a mini-Phil Spector murder trial, the prosecution’s attempt to sabotage IRS and a federal tax controversy involving Leonard Cohen, Streeter’s conclusion that I should be drugged and committed to a “domestic violence” facility with respect to letters I sent Bruce Cutler, my mother’s views on that issue, my privileged communications with IRS, FBI, DOJ, and other authorities, attempts to limit those communications, misleading and lying to jurors, retaliation over probation that involved Stephen Gianelli’s harassing communications to the City Attorney and District Attorney, false imprisonments, my claims against the City and County of Los Angeles, the first amendment and retaliation over grievances to government authorities, outrageous government conduct as it relates to interference with an IRS matters, non-compliance with federal tax laws, and the Phil Spector case, and so forth.  These issues generally have nothing whatsoever to do with charges related to violations of a restraining order, fraudulent or otherwise, and/or the legitimacy of alleged communications to Kory, Rice, IRS, FBI, DOJ, Treasury, ICE, CIA, U.S. Senate Judiciary, FTB, and others.  The issues raised in the uncharged offenses, and with respect to communications between the City Attorney and District Attorney about me and the Phil Spector case, as well as all evidence related thereto should be severed from the charged offenses and heard separately. 
3.         I view these proceedings as blatant retaliation and further attempts to destroy me.  These proceedings are nothing other than thinly disguised criminal witness tampering, criminal witness intimidation, and endless attempts to sabotage IRS, insert Phil Spector into these proceedings, and an opportunity to argue erroneous matters using a domestic violence order and paid victim witnesses who are eternally conflicted as Leonard Cohen’s general counsel, litigation counsel, corporate counsel, and co-conspirators.
4.         I believe I am being retaliated against due to the fact that I reported allegations related to Leonard Cohen’s civil and criminal tax fraud to IRS and other authorities and have been vocal about Phil Spector’s innocence.  I am convinced that former DA Steve Cooley had investigators in the courtroom during my 2012 trial in an attempt to intimidate me.  I also believe Leonard Cohen may have been an “informant” of sorts against Phil Spector that resulted in his testimony about Phil Spector and a gun during my 2012 trial.  The prosecutor during my 2012 trial elicited testimony about Phil Spector, Cohen’s statements and/or testimony being transmitted to Spector’s Grand Jury and/or used in Spector’s proceedings, and used an email I sent Dennis Riordan to elicit that testimony from Leonard Cohen regarding those issues.  Cohen testified that he was a recipient of the email sent to Dennis Riordan, he was not, and on cross acknowledged that he was not.  I believe I am legally entitled to advise Dennis Riordan that Cohen advised me for twenty years that Phil Spector never held a gun on him, his gun stories about Phil Spector were nothing other than “good rock ‘n roll stories,” and Cohen refused to provide me with IRS required tax and corporate information.  I was therefore targeted by the prosecution for transmitting witness information to Dennis Riordan.  Similarly, I was targeted by the prosecution with respect to allegations that Leonard Cohen committed civil and criminal tax fraud, my communications with IRS and other authorities, and for transmitting information to DOJ and FBI about meth labs, meth distribution, a murder, and the Aryan Nation.  I was privy to that information due to the fact that Leonard Cohen bankrupted me and forced me into homelessness.  These are just three examples of information I transmitted to Phil Spector’s legal team and/or the federal government for which I was retaliated against by the prosecution throughout the 2012 proceedings.
5.         I have information about witnesses who have lied either on the stand in the Phil Spector case or whose statements were used in the Spector case with respect to prior bad acts.  Two of those individuals are Leonard Cohen and Stephanie Jennings.  It is my understanding, based upon a review of the Grand Jury transcripts by journalist Mick Brown (UK Telegraph) that Leonard Cohen’s statements and/or testimony were transmitted to Phil Spector’s Grand Jury.  Mr. Brown brought this to my attention.  I was prosecuted in 2012 over that issue.  I am aware of the fact that the Spector prosecution used a version of Cohen’s good rock ‘n roll gun story about Phil Spector in at least one motion filed in that case.  That motion is readily available on LA Superior Court’s website and can be viewed at this link.
In this particular version, the Spector prosecution set forth a version of this alleged incident that was contradicted by Cohen’s own testimony during my 2012 trial.  In this version, Phil Spector allegedly pointed a semi-automatic at Cohen’s chest.  During my trial, Cohen testified that Phil Spector allegedly pointed an automatic at his head.  At the outset of the 2012 trial, Cohen wrote Sandra Jo Streeter that Spector pointed the gun at his neck.  There are now three contradictory versions of this incident before LA Superior Court.  They involve the following components:  a gun to the head, neck, or chest; an automatic or semi-automatic; a bottle of wine in one version; and, according to the DA, the incident took place in the recording studio.  Leonard Cohen has personally provided interviews confirming that the alleged incident took place at his home at 3 AM.  There are also interviews where Cohen alleged that Phil Spector actually held a crossbow on him.  I cannot imagine why I was prosecuted over this issue and view it as blatantly criminal witness tampering and threats. 
1.      As for the incident at the Carlyle Hotel, I was present and witnessed what I believe has
become a fictitious account.  I was in town at that time, staying at a hotel nearby, heard Phil Spector was in town, and called him.  He invited me over to the Carlyle to visit.  When I arrived, I was advised to go upstairs to his room.  I entered the room, and distinctly recall this incident because I initially found his conduct was absurd, and saw Mr. Spector sitting on a chair, nearly in front of the bathroom door, with arms crossed across his chest.  I had walked over to the window to look out, turned around, and started laughing.  I asked him what he was doing.  I believe he mumbled something under his breath and nodded towards the bathroom.  I walked over to the bathroom and peaked in.  An individual who I would later understand was Stephanie Jennings was hiding in the bathtub and/or shower.  I asked Phillip what was going on.  He explained that she had somehow gained access to his room while he was not there and may have been going through his belongings.  I suggested that we go downstairs and file a complaint with the management.  I believe we did, although the details of that particular aspect of the incident are murky, and I also believe a mutual friend of ours was present for some of what unfolded.  That individual frequently served as Mr. Spector’s companion on trips, witness, and unofficial bodyguard.  I have arranged security for Mr. Spector over the years and am familiar with many members of his security detail.  I have also been out with Phil Spector when members of his security detail or staff were present.  I also understand why security for Mr. Spector was necessary.  This is not the only incident with an obsessive woman involving Phil Spector that I have witnessed.  I witnessed a similar incident at the Beverly Hills Hotel that may have involved Diane Ogden.  There was no gun incident at the Carlyle Hotel and I did not see a gun in Mr. Spector’s room or hear of one.  I am also aware that Stephanie Jennings phoned Paulette Brandt about this incident and informed her that she and Phil Spector argued.  At no time, and I have discussed this with Paulette Brandt countless times, did Stephanie Jennings advise Ms. Brandt that Phil Spector had and/or held a gun on her.  Furthermore, I am in receipt of an email from New York Police Department confirming that if an individual had held a gun on someone in a New York hotel, they would have been arrested for the gun and menacing.  Alternatively, Ms. Jennings was escorted from the hotel and viewed as a possible prostitute.  I believe that this and other information I have knowledge of is the reason I have been targeted by former DA Steve Cooley, intimidated by his investigator during the 2012 proceedings, and also targeted by former City Attorney Carmen Trutanich who is being investigated by the State Bar for misconduct in another case.  I also believe the 2012 trial was designed in response to my letter to former DDA Alan Jackson and scheduled during the DA election campaign.  However, as one very well known celebrity news outlet advised me, no one is all that interested in writing stories about Leonard Cohen, they already covered the Spector trial, and the only real news here relates to Leonard Cohen’s contradictory gun stories about Phil Spector before LA Superior Court.  Therefore, Cohen’s testimony about Phil Spector was not of particular interest to the news media.  The fact that Cohen and his attorneys testified that I was in receipt of the tax documents (specifically 1099 and K-1s) was of interest to the news media.  The more salacious, fictitious tale of a disgruntled ex-lover, not genuinely in need of tax information, who successfully got away with embezzlement – although it is my understanding Cohen and his legal team approached the District Attorney about that so-called issue , but was alternatively convicted of annoying Leonard Cohen over his misappropriation of corporate assets and withholding of tax information, and a woman who may have wanted to attend his concert was more suited to groupie journalists and news outlets.  This fabricated narrative is obscene.  It has been concocted by misogynists, sycophants, individuals with motive, and people who appear to spend 24/7 concocting one lie after another.  That includes, but is not limited to, Robert Kory and Michelle Rice who have financially benefitted from their conduct.  I have no idea what the City Attorney believes he is doing at this time but I have asked IRS, FBI, DOJ, and other authorities to investigate these and other proceedings and prosecute everyone involved who is not immune.  This fraudulent domestic violence case is nothing other than a federal tax controversy, further opportunity to sabotage IRS, and another excuse to destroy me and terrorize my family and friends while inserting Phil Spector’s murder trial into the proceedings yet again. 
8.         At this time, Stephen Gianelli, an operative and/or proxy of Leonard Cohen’s, continues to relentlessly harass and publicly attack me.  He has threatened me over my mother’s death, lied to LAPD’s Threat Management Unit, and targeted my friend Dan Meade following his recent death.  Dan Meade submitted a letter to this Court, together with his declaration, addressing Stephen Gianelli’s psychotic criminal conduct.  Paulette Brandt and Rutger Penick are both witnesses in this case and have informed the Court of same.  They have been relentlessly harassed by Stephen Gianelli over this case and their declarations.  These proceedings have exposed us to endless criminal conduct.  Investigator William Frayeh, District Attorney’s Office, concluded that Stephen Gianelli may have found a “sympathetic ear” about me with Spector’s prosecutor Alan Jackson and informed me that he would investigate that situation.  The results of that investigation are relevant and material to the alleged uncharged offenses.
9.         I have advised this Court that I intend to consult a computer forensic expert to review the fabricated email evidence introduced in this case.  I did not create, fabricate and/or transmit that fabricated email evidence to Robert Kory and/or Sandra Jo Streeter.  I have previously addressed the fact that someone lifted an email from my blog that was sent to IRS Commissioner’s Staff regarding Robert Kory’s declaration that is nothing other than a perjured document, a narrative related to his conduct and others, and evidence that Kory is concerned about his potential role in criminal tax fraud and theft of royalty income.  The declaration implicates serious federal tax matters, theft of millions of dollars of corporate assets, and Kory’s probable role as a co-conspirator.  Robert Kory and Michelle Rice have served as legal counsel to Leonard Cohen, paid witnesses who have now converted themselves into self-serving victims, and benefit from their conduct.  They are most certainly not witnesses and should be viewed as co-conspirators who have aided and abetted tax fraud, tax evasion, other criminal activity, and the targeting of witnesses.  While the issues related to who transmitted these emails to Robert Kory and Sandra Jo Streeter have not been litigated, the prosecution has attempted to use the fabricated evidence to insert extraneous information, evidence, and uncharged offenses into this case.  Therefore, I am asking the Court to sever issues and/or offenses and/or evidence related to any credible threat involving Steve Cooley, discussions about that matter between the City Attorney and District Attorney, and any witness dissuasion involving Sandra Jo Streeter.  The prosecution should not be permitted to circumvent my rights to due process, a fair proceeding, and/or the appropriate standard related to prosecutions involving credible threats and/or witness dissuasion.  The prosecution should be forced to prove every element of these alleged offenses, provide me the opportunity to confront my accusers, and address each and every issue they have attempted to insert into these proceedings through the content of the fabricated email evidence and/or hearsay related to Steve Cooley and Sandra Jo Streeter. 
10.       Due to the fact that the prosecution failed to serve me certain documents, including their Statutory Authority for the Filing of the Permanent Production Order in the State of Colorado Case (Los Angeles Superior Court Case No. BQ033717), once I am in receipt of the transcript of the September 8, 2017 proceedings, I will file a writ of mandate with the Court of Appeals.  There are two conflicting restraining orders at issue in this case and one of them is indeed a California domestic violence order issued without minimal due process.  I object to all false statements raised in the background section of the prosecution’s memorandum and reserve the right to confront the ever expanding fabricated narrative and fictitious course of conduct.  That includes, but is not limited to, the allegations related to misappropriation.  The fact that Leonard Cohen obtained a fraudulent default judgment, and wrongfully converted corporate property and my property to himself, does not prove that I misappropriated anything whatsoever.  During the March 23, 2012 preliminary hearing, Leonard Cohen personally testified that we were in a purely business relationship and I never stole from him – just his “peace of mind.”  DCA Sandra Jo Streeter was present for that testimony.  Cohen falsely testified that I failed to file my 2004 and 2005 tax returns when in fact Cohen, and the corporations he controlled, willfully and knowingly failed to provide me with IRS required tax forms (1099 and K-1s), corporate balance sheets, corporate accountings, and corporate tax returns related to the following corporations I had an ownership interest in for the years 2004 and 2005:  Blue Mist Touring Company, Inc., Traditional Holdings, LLC, and Old Ideas, LLC.  Therefore, Leonard Cohen and his representatives are the individuals who have obstructed justice with respect to my inability to file my returns. 
11.       It is my understanding that the fabricated email evidence, that were allegedly transmitted to Robert Kory and Sandra Jo Streeter, have been submitted to this Court.  At this time, I am not in possession of a transcript of the September 8, 2017 hearing but the relevant portions (based upon my shorthand notes) are as follows:

REDACTED.  WILL HAVE ACTUAL HEARING TRANSCRIPT SHORTLY.

12.       I have threatened and/or attempted to dissuade no one regardless of the Deputy City Attorney’s false assertions regarding that fact. 
13.       As investigations into issues raised in this case remain ongoing, I am not in a position to file certain motions and/or documents at this time.  That would include, but is not limited to, a motion in limine and request for judicial notice.  I hope to have those filed in the near future but the investigations are beyond my personal control. 

I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct.
This declaration is executed on this 25th day of September 2017 in Los Angeles, California.



                                                            ____________________________________
                                                            KELLEY LYNCH



DECLARATIONS AND OTHER EXHIBITS REMOVED.

Kelley Lynch's Brady Motion Filed w/ LA Superior Court 09.27.17

MEMORANDUM OF POINTS & AUTHORITIES

FACTUAL BACKGROUND

Defendant has been falsely accused and charged with alleged violations of a protection order (or conflicting orders in two states that are at issue in this case) obtained by deceased singer-songwriter Leonard Cohen and additional charges related to her allegedly illegitimate communications to Robert Kory, Michelle Rice, IRS, FBI, DOJ, Treasury, ICE, CIA, Senate Judiciary, FTB, and others.  Two Amended Information Complaints have been filed to date.
ARGUMENT

This motion requests disclosure of exculpatory and impeachment information pursuant to Brady v. Maryland (1963) 373 U.S. 83 and its progeny and Penal Code section 1054.1(e).
A California prosecutor’s obligation to provide exculpatory and impeachment information arises from the federal Due Process Clause of the Fourteenth Amendment as applied by the United States Supreme Court in Brady v. Maryland (1963) 373 U.S. 83 (constitutionally-mandated discovery) and California’s Criminal Discovery Statute as codified in Penal Code section 1054.1(e) (statutorily-based discovery).  Both the federal and state rules require that the prosecution provide evidence favorable to the defendant on the issue of guilt or punishment.  Favorable evidence may consist of exculpatory information factually specific to a case (exculpatory evidence) or impeachment information undermining the credibility of a prosecution witness (impeachment evidence) and members of the prosecution team.
In Brady v. Maryland, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  Brady v. Maryland (1963) 373 U.S. 83, 87.  A failure to disclose material favorable evidence to an accused (a Brady violation) can result in a dismissal or reversal or modification of a judgment. The rule established in Brady (Brady rule) is independent of the Criminal Discovery Statute.  Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378.
In Penal Code section 1054.1, the California legislature set forth a list of discovery materials and information which the prosecution is required to disclose to the defense before trial, including 1054.1(e) (“The prosecuting attorney shall disclose to the defendant . . . any exculpatory evidence.”).  The term “exculpatory evidence” as used in Penal Code section 1054.1(e) is a symbolic term used to describe Brady evidence and includes impeachment evidence. See, e.g., United States v. Bagley (1985) 473 U.S. 667, 676 (“This Court has rejected any [constitutional] distinction between impeachment evidence and exculpatory evidence.”); Strickler v. Greene (1999) 527 U.S. 263, 281 (“Thus the term ‘Brady violation’ is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence . . . .”); People v. Kasim (1997) 56 Cal.App.4th 1360, 1381 (“Law enforcement agencies (1) possessed significant exculpatory evidence bearing on the credibility of the key prosecution witnesses.”); Snow v. Sirmons (2007) 474 F.3d 693, 711 (“Exculpatory evidence includes impeachment evidence.”).
In enacting Penal Code section 1054.1(e), the legislature codified and expanded the Brady rule. In providing for the disclosure to the defense of “any exculpatory evidence,” the legislature broadened the Brady rule to mandate California prosecutors to disclose exculpatory evidence to the defense without regard to materiality.  Barnett v. Superior Court (2010) 50 Cal.4th 890, 901; see also People v. Bowles (2011) 198 Cal.App.4th 318, 326. 
A failure to disclose any exculpatory evidence (a PC 1054.1(e) violation) can result in various discovery sanctions pursuant to Penal Code section 1054.5(b), but generally not in dismissal.  Pen. Code, § 1054.5, subd. (c).
            The prosecution in this case should be admonished to strictly adhere to the constitutional (Brady) and statutory (PC 1054.1(e)) disclosure obligations. A failure to reveal or produce exculpatory and impeachment information pursuant to the Brady rule and Penal Code section 1054.1(e) may also violate Rules of Professional Conduct, Rule 5-220 (“A member shall not suppress any evidence that the member . . . has a legal obligation to reveal or produce.”) and Penal Code section 141 (A prosecutor who intentionally withholds relevant, exculpatory information is guilty of a felony.).
A prosecutor has an affirmative due process duty to disclose to the defendant all favorable material evidence possessed by the prosecution team.  In re Brown (1998) 17 Cal.4th 873, 879. This Brady rule applies even though there has been no request.  United States v. Agurs (1976) 427 U.S. 97, 107.
Evidence is “favorable” to a defendant if it either helps the defendant or hurts the prosecution.  In re Sassounian (1995) 9 Cal.4th 535, 543-544.  Evidence is favorable to a defendant when it is exculpatory or can be used to impeach the testimony of a material prosecution witness.  United States v. Bagley (1985) 473 U.S. 667, 676.  “Exculpatory” evidence pursuant to Brady is information which, if true, could show that a defendant is innocent or less culpable for the crime charged and which must be disclosed to the defendant without request.
Examples of exculpatory evidence include evidence that: Mitigates punishment [In re Miranda (2008) 43 Cal.4th 541, 567-577]; Directly opposes guilt [Castleberry v. Brigano (6th Cir. 2003) 349 F.3d 286, 293]; Negates an element of a charged offense [Youngblood v. West Virginia (2006) 547 U.S. 867 (Suppressed note written by alleged sexual assault victims could have supported consensual-sex defense.)]; Supports defense testimony [People v. Collie (1981) 30 Cal.3d 43, 54; Hobbs v. Municipal Court (1991) 233 Cal.App.3d 670, 688]; Supports an affirmative defense [United States v. Ross (9th Cir. 2004) 372 F.3d 1097, 1108-1109 (Evidence supporting entrapment defense is favorable to defendant.)]; and Supports a defense motion [United States v. Gamez-Orduno (9th Cir. 2000) 235 F.3d 453, 461; United States v. Barton (9th Cir. 1993) 995 F.2d 931, 935].
“Impeachment” evidence pursuant to Brady is information about a witness that a fact finder may consider in determining whether that witness is telling the truth.  Evidence impeaching the credibility of a material prosecution witness is different conceptually from other kinds of evidence favorable to a criminal defendant, in that impeachment evidence generally does not concern itself with the question whether the defendant is guilty or not guilty of the charges against him or her. Yet impeachment evidence is subject to the same Brady rules of disclosure as any other kind of evidence favorable to the defendant.  Pipes & Gagen, California Criminal Discovery (4th Edition), sec. 1:23:1.
Examples of impeachment evidence include: Felony convictions involving moral turpitude [People v. Castro (1985) 38 Cal.3d 301, 314];  Misdemeanor or other conduct that reflects on believability [People v. Wheeler (1992) 4 Cal.4th 284, 295-297; California Criminal Jury Instructions No. 105]; Misconduct involving moral turpitude [People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7]; False reports by a prosecution witness [People v. Hayes (1992) 3 Cal.App.4th 1238, 1244]; Pending criminal charges against a prosecution witness [People v. Coyer (1983) 142 Cal.App.3d 839, 842]; Parole or probation status of a prosecution witness [Davis v. Alaska (1974) 415 U.S. 308, 319; People v. Price (1991) 1 Cal.4th 324, 486];
Evidence contradicting a prosecution witness’s statements or reports [People v. Boyd (1990) 222 Cal.App.3d 541, 568-569]; Evidence undermining a prosecution witness’s expertise (e.g., inaccurate statements or expert opinions)  [People v. Garcia (1993) 17 Cal.App.4th 1169, 1179]; A finding of misconduct by a Board of Rights or Civil Service Commission that reflects on a prosecution witness’s truthfulness, bias or moral turpitude [Cf. People v. Wheeler (1992) 4 Cal.4th 284, 293]; Evidence that a prosecution witness has a reputation for untruthfulness [Evid. Code, § 780; see Carriger v. Stewart (9th Cir. 1997) 132 F.3d 463, 479 (Evidence that a prosecution witness has a reputation for manipulation and dishonesty is evidence tending to exculpate the defendant and must be disclosed to the defendant.)]; Evidence that a prosecution witness has a racial, religious or personal bias against the defendant individually or as a member of a group [Evid. Code, § 780; In re Anthony P. (1985) 167 Cal.App.3d 502, 507-510]; and Promises, offers or inducements to a prosecution witness, including a grant of immunity [United States v. Bagley (1985) 473 U.S. 667, 676-677; Giglio v. United States (1972) 405 U.S. 150, 153-155].
Impeachment evidence is favorable to a defendant when it undermines the credibility of a prosecution witness.  United States v. Bagley (1985) 473 U.S. 667, 676; People v. Morris (1988) 46 Cal.3d 1, 30; People v. Phillips (1985) 41 Cal.3d 29, 46. 
Evidence impeaching the testimony of a material prosecution witness becomes favorable evidence pursuant to the Brady rule only when the witness testifies as a prosecution witness.  See United States v. Haskell (8th Cir. 2006) 468 F.3d 1064, 1075; People v. Cook (2006) 39 Cal.4th 566, 589.
Evidence is “material” if there is a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed.  Strickler v. Greene (1999) 527 U.S. 263, 289.
A prosecution witness is a “material witness” when that witness's testimony is so important that there is a reasonable probability that its absence would affect the outcome of the prosecution’s case.  E.g., Strickler v. Greene (1999) 527 U.S. 263, 291-296; People v. Williams (1997) 16 Cal.4th 635, 653; People v. Ruthford (1975) 14 Cal.3d 399, 406; Giglio v. United States (1972) 405 U.S. 150, 154-155; In re Ferguson (1971) 5 Cal.3d 525, 535.  Specifically, a “material witness” provides testimony at trial on an important issue which is not cumulative, i.e., testimony which no one else can give on a disputed issue.  E.g., People v. Salazar (2005) 35 Cal.4th 1031, 1049-1051; Banks v. Dretke (2004) 540 U.S. 668, 700-701; United States v. Fallon (7th Cir. 2003) 348 F.3d 248, 252; Bailey v. Rae (9th Cir. 2003) 339 F.3d 1107, 1116-1119.
Penal Code section 1054.1 provides: The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:
(a) The names and addresses of persons the prosecutor intends to call as witnesses at trial. (b) Statements of all defendants. (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. (d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. (e) Any exculpatory evidence. (f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial.

Subdivision (e) codifies the Brady rule. As used in that subdivision, the phrase “exculpatory evidence” includes both exculpatory and impeachment evidence.  The United States Supreme Court has rejected any constitutional distinction between exculpatory evidence and impeachment evidence and has specifically stated that “impeachment evidence . . . as well as exculpatory evidence, falls within the Brady rule” (United States v. Bagley (1985) 473 U.S. 667, 676). Similarly, the California Supreme Court has rejected any distinction between the phrase “exculpatory evidence” as utilized in Penal Code section 1054.1(e) and the prosecutor’s Brady disclosure duty under the Due Process Clause (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 372).  Subdivision (e) also expands the Brady rule. Its language requires a prosecutor to disclose to the defendant any exculpatory evidence, not just material exculpatory evidence.  Barnett v. Superior Court (People) (2010) 50 Cal.4th 890, 901.  A failure to disclose any exculpatory evidence (PC 1054.1(e) violation) can result in various discovery sanctions pursuant to Penal Code section 1054.5(b), but generally not in dismissal.  Pen. Code, § 1054.5, subd. (c).
The fulfillment of the prosecution’s obligation under the Brady rule and Penal Code section 1054.1(e) to provide exculpatory and impeachment evidence is the sole responsibility of the prosecution and should be done without a defense request.  To ensure compliance with the Brady rule, the United States Supreme Court on more than one occasion has urged the “careful prosecutor” to err on the side of disclosure.  Kyles v. Whitley (1995) 514 U.S. 419, 440.  “The prudent prosecutor will resolve doubtful questions in favor of disclosure.”  United States v. Agurs (1976) 427 U.S. 97, 108; see also Kyles v. Whitley (1995) 514 U.S. 419, 439 (Warning prosecutors against “tacking too close to the wind” in withholding evidence.).
A prosecutor must continue to comply with the Brady rule and Penal Code section 1054.1(e) during the trial, so any exculpatory and/or impeachment evidence discovered after the trial begins must be provided to the defense.  See United States v. Jordan (11th Cir. 2003) 316 F.3d 1215; In re Lawley (2008) 42 Cal.4th 1231, 1246.
The Brady rule is based on due process and exists to ensure a defendant a fair trial.  Weatherford v. Bursey (1977) 429 U.S. 545, 559; Brady v. Maryland (1963) 373 U.S. 83, 87.  However, if, after the trial ends, a prosecutor acquires information which casts doubt upon the correctness of a conviction, the ethical code of the legal profession requires the prosecutor to disclose the information.  Imbler v. Pachtman (1976) 424 U.S. 409, 427, n. 25; In re Lawley (2008) 42 Cal.4th 1231, 1246; Rules Prof. Conduct, rule 5-220 (“A member shall not suppress any evidence that the member . . . has a legal obligation to reveal or produce.”).
CONCLUSION
It is the obligation of the prosecution, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.  In this case that would include, but is not limited to, the District Attorney of Los Angeles, LAPD’s TMU (including with respect to Steve Cooley), Berkeley Police Department.  Defendant attaches hereto, and makes a part hereof, a schedule of information and/or evidence she is requesting from the prosecution team, and asks the Court to grant this motion.
Dated:  25 September 2017                             Respectfully Submitted,

                             
                                                                        By:_______________________________
                                                                              Kelley Lynch, in Propria Persona 




EXHIBIT A

SCHEDULE OF BRADY
INFORMATION/EVIDENCE REQUESTED

            The prosecution is obligated to provide the defense with exculpatory evidence that is material to either guilt or punishment.  Exculpatory evidence means favorable to the accused.  This obligation includes “substantial material evidence bearing on the credibility of a key prosecution witness.”  People v. Ballard (1991) 1 Cal.App.4th 752, 758.  Such impeachment evidence must disclose more than “minor inaccuracies.”  People v. Padilla (1995) 11 Cal.4th 891, 929.  Impeachment evidence is defined in Evidence Code Section 780 and CALJIC 2.20.  Examples of impeachment evidence are set forth as follows:
The character of the witness for honesty or veracity or their opposites.  (Evidence Code Section 780(e).) 

A bias, interest, or other motive.  (Evidence Code Section 780(f).)

A statement by the witness that is inconsistent with the witness’ testimony.  (Evidence Code Section 780(h).)

Felony convictions involving moral turpitude.  (Evidence Code Section 788.)

Facts establishing criminal conduct involving moral turpitude, including misdemeanor convictions.  (People v. Wheeler (1992) 4 Cal.4th 284, 295-297.)

False reports by a prosecution witness.  (People v. Hayes (1992) 3 Cal.App.4th 1238, 1244.)

Pending criminal charges against a prosecution witness.  (People v. Coyer (1983) 142 Cal.App.3d 839, 842.)

Parole or probation status of a witness.  (Davis v. Alaska (1974) 415 U.S. 308, 319; People v. Price (1991) 1 Cal.4th 324, 486.)

Evidence undermining an expert witness’s expertise.  (People v. Garcia (1993) 17 Cal.App.4th 1169, 1179.)

Evidence that a witness has a racial, religious, or personal bias against the defendant individually or as a member of a group.  (In re. Anthony P(1985) 167 Cal.App.3d 502, 507-510.) 

The duty of disclosure applies even to completed case.  (People v. Garcia (1993) 17 Cal.App.4th 1169, 1179.)  However, it does not apply to cases in which the defendant pled guilty or no contest.  (U.S. v. Ruiz (2002) 536 U.S. 622.)  Kelley Lynch pled not guilty in 2012.  She has raised the fact that the entire 2012 trial record is evidence of fraud with this Court. 

In accordance with the requirements detailed hereinabove, Kelley Lynch requests the following information.  She intends to pursue an affirmative entrapment defense as well as issues related to the prosecution manufacturing criminal conduct.  That will include, but is not limited to, the prosecution’s novel theory that her requests (as addressed extensively during her 2012 trial which led to a conviction) for federal tax information and communications with federal agencies (such as IRS, FBI, DOJ, Treasury, and so forth) were her “intent to annoy” Leonard Cohen. 
It is the obligation of prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.  In this case that would include, but is not limited to, the Los Angeles City Attorney, Los Angeles District Attorney, LAPD’s Threat Management Unit, Berkeley Police Department, and possibly other government and/or law enforcement agencies and/or agents.  The information and/or evidence being requested is as follows:
1.          Any agreement, expressed or implied, not to prosecute a witness, such as Leonard Cohen or his representatives, for any crime or crimes, or to otherwise recommend leniency or favorable treatment.  During the 2012 proceedings, DCA Sandra Jo Streeter confirmed that the District Attorney’s Office elected not to prosecute Leonard Cohen in connection with Lynch’s complaint to the DA’s Major Fraud Unit.  That complaint involved the theft of millions of dollars from Lynch, corporations, and raised other serious issues related to fraud, corporate malfeasance, money laundering, tax fraud, legal conspiracy, etc.  During those proceedings, former DA Steve Cooley publicly aligned himself with Leonard Cohen, had at least one investigator in the courtroom to intimidate Lynch, and the prosecution elicited extensive testimony about Phil Spector, Cohen’s so-called gun stories about Mr. Spector, former DA Steve Cooley, former DDA Alan Jackson, and Phil Spector’s appellate attorney, Dennis Riordan.  Lynch maintains that there was some form of quid pro quo between the prosecution, which would include the District Attorney’s Office in this case, Leonard Cohen, and/or Cohen’s legal representatives, Robert Kory and Michelle Rice, et al. that resulted, in part, in the DA’s decision not to prosecute Cohen and Leonard Cohen’s testimony during the 2012 proceedings about Phil Spector.  In fact, Lynch contends that her trial was design as a response to her September 2009 letter to former DDA Alan Jackson. 
2.         The role of Leonard Cohen, Robert Kory, Michelle Rice, former DA Ira Reiner, or any other representative or agent of Leonard Cohen’s, as a confidential informant, witness, and/or human source with respect to the Phil Spector case, Kelley Lynch, and/or any matters related to the IRS and tax fraud at issue throughout the 2012 proceedings.  The credibility of cooperating witnesses or informants is an issue should they testify during trial.  Leonard Cohen previously testified.  However, this information was not disclosed to Kelley Lynch.  The information requested should include all proffer, immunity and other agreements, validation assessments, payment information, and other potential witness impeachment information.  Lynch intends to pursue an affirmative entrapment defense, involving members of the prosecution team (including the District Attorney’s Office) and prosecution witnesses, so this information and/or evidence is both relevant, material, and probative. 
3.         Any agreement, expressed or implied, not to prosecute a third party of concern to the witness for any crime or crimes, or to otherwise recommend leniency or favorable treatment. Such third parties include Leonard Cohen, Leonard Cohen’s legal representatives, Robert Kory and Michelle Rice, and/or related parties.  This issue would also extend to any assistance the prosecution team offered Leonard Cohen with respect to tax fraud, theft of corporate property, and/or attempts to sabotage Internal Revenue Service and discredit Kelley Lynch.
4.         The substance of any written communications between the government and Leonard Cohen and/or any agents, representatives, or attorneys of Leonard Cohen relating to any deals or understandings entered into between them and the government whereby Cohen and/or his representatives may expect immunity or other favorable treatment in return for its cooperation or testimony in this or any other prosecution.  That would include, but is not limited to, the Phil Spector case, any IRS or federal tax prosecution, and with respect to Kelley Lynch.  It is Lynch’s understanding that Leonard Cohen’s statements related to Phil Spector and a gun were transmitted to the Spector Grand Jury and she is aware that the Spector prosecution used a version of Cohen’s gun story in at least one motion in limine as a prior bad act.  That version was contradicted by Leonard Cohen’s testimony during Lynch’s 2012 trial.  It was further contradicted by an email Leonard Cohen transmitted to DCA Sandra Jo Streeter during those proceedings.    
5.         Any agreement, expressed or implied, to provide favorable treatment or consideration such as money, a job, a new start, or any concession to the witness himself or to a third party of concern to the witness.
6.         Any agreement, expressed or implied, to contact any state or federal agency, bureau, department, or other unit to put in a good word for the witness or to suggest that the witness receive any sort of favor, benefit, compensation, or consideration.  That would include, but is not limited to, Internal Revenue Service, FBI, DOJ, Treasury, FTB, and/or ICE.  It is Lynch’s understanding that the District Attorney of Los Angeles contacted ICE with respect to Phil Spector’s driver, Adriano DeSouza, and concessions were made to him in exchange for his testimony.  Leonard Cohen was a resident alien in this country who, due to the issues related to the federal tax matters raised during Lynch’s 2012 proceedings, may have been concerned about his residence status.

7.         Any agreement, expressed or implied, to recommend to any state or federal agency, bureau, or department, or other unit, that the witness, any friend, relative, agent, associate, or employer of the prosecution witness receive any sort of favor, benefit, compensation, or consideration.
8.         The terms of any agreement whereby the witness would become an agent of, or cooperate with, any governmental entity to provide information or evidence relevant to the detection or prosecution of a crime – or did in fact provide information and/or evidence.  That would include, but is not limited to, the Phil Spector case, any matter related to IRS and/or tax fraud, and with respect to Kelley Lynch.  It is Lynch’s understanding that Leonard Cohen was represented by former DA Ira Reiner. 
9.         Information in the possession of the government or available to the government as to the criminal history of the prosecution witness including all arrests whether convicted or not.
10.        Any consideration or promise of consideration made by any government representative to any prosecution witness.
11.        Disclosure of all crimes, misconduct, or bad acts which the government has reason to believe have been committed by any prosecution witnesses or by their representatives and/or operatives.
12.        Substantive case related communications.  During the 2012 proceedings, DCA Streeter informed the Court that the District Attorney’s Office contacted the City Attorney with respect to Kelley Lynch.  In the current proceedings, DCA Henry informed this Court that members of the City Attorney’s Office and District Attorney’s Office had discussed Lynch and mentioned an email Lynch allegedly sent former DA Steve Cooley.  Streeter also informed the Court that Lynch “fought” with the District Attorney’s Office.  Lynch has received no information and/or reports about these communications. 
13.        All substantive case-related communications would include communications among prosecutors and/or agents of these offices, between prosecutors and/or agents and witnesses and/or victims, and between victim witness coordinators and witnesses and/or victims.  Such communications may have been memorialized in emails, memoranda, or notes.  “Substantive” communications include factual reports about investigative activity, factual discussions of the relative merits of evidence, factual information obtained during interviews or interactions with witnesses/victims, and factual issues relating to credibility.  The format of the information does not determine whether it is discoverable. For example, material exculpatory information that the prosecutor receives during a conversation with an agent or a witness is no less discoverable than if that same information were contained in an email. When the discoverable information contained in an email or other communication is fully memorialized elsewhere, such as in a report of interview or other document(s), then the disclosure of the report of interview or other document(s) should be provided to the defense.  For example, DCA Streeter communicated directly with Leonard Cohen prior to and/or during the 2012 proceedings.  In one such communication, provided to Lynch’s lawyers, Streeter noted that she “hated to keep peppering” Cohen with questions but failed to provide the prior communications to the defense. 
14.       Potential Giglio Information Relating to both Law Enforcement and Non Law Enforcement Prosecution Witnesses:
  • Prior inconsistent statements
  • Statements or reports reflecting witness statement variations (see below)
  • Benefits provided to witnesses including:
    • Dropped or reduced charges
    • Immunity
    • Expectations of downward departures or motions for reduction of sentence
    • Assistance in a federal, state or local criminal proceeding
    • Considerations regarding forfeiture of assets
    • Stays of deportation or other immigration status considerations
    • Green card and/or alien resident status
    • Monetary benefits
    • Non-prosecution agreements
    • Letters and/or communications to and/or with other law enforcement officials (e.g. federal government authorities) setting forth the extent of a witness’s assistance or making substantive recommendations on the witness’s behalf
    • Consideration or benefits to culpable or at risk third-parties
  • Other known conditions that could affect the witness’s bias such as:
    • Animosity toward defendant
    • Animosity toward a group of which the defendant is a member or with which the defendant is affiliated
    • Relationship with victim
    • Known but uncharged criminal conduct (that may provide an incentive to curry favor with a prosecutor)
  • Prior acts
  • Prior convictions
  • Known substance abuse or mental health issues or other issues that could affect the witness’s ability to perceive and recall events
15.       Information Obtained in Witness Interviews: Although not required by law, generally speaking, witness interviews should have been memorialized by the agent. Agent and prosecutor notes and original recordings should be preserved, and prosecutors should confirm with agents that substantive interviews should be memorialized. When a prosecutor participates in an interview with an investigative agent, the prosecutor and agent should discuss note-taking responsibilities and memorialization before the interview begins (unless the prosecutor and the agent have established an understanding through prior course of dealing). Whenever possible, prosecutors should not conduct an interview without an agent present to avoid the risk of making themselves a witness to a statement and being disqualified from handling the case if the statement becomes an issue. If exigent circumstances make it impossible to secure the presence of an agent during an interview, prosecutors should try to have another office employee present. Interview memoranda of witnesses expected to testify, and of individuals who provided relevant information but are not expected to testify, should be reviewed.  Lynch was not provided this information during her 2012 proceedings although she was advised that Leonard Cohen and his lawyers, Robert Kory and Michelle Rice, met with members of LAPD’s Threat Management Unit and the prosecution.  In fact, it is Lynch’s understanding that prior to Robert Kory’s testimony during the 2012 proceedings, DCA Streeter met with him and this resulted in the introduction of an “IRS Binder” as potential evidence. 
·         a. Witness Statement Variations and the Duty to Disclose.
·         b. Trial Preparation Meetings with Witnesses.
·         c. Prosecution Memorandum, Reports, Interview Notes, Accounts of Interviews
16.       With respect to the involvement of the District Attorney’s Office in the 2012 proceedings and/or the current proceedings:

Many cases arise out of investigations conducted by multi-agency task forces or otherwise involving state law enforcement, prosecutorial and/or other government agencies.  Lynch maintains that, with respect to her 2012 prosecution and the current proceedings, the District Attorney of Los Angeles, LAPD’s TMU, and other members of the prosecution team were under the prosecutor’s control, participated in joint investigations, and/or shared resources.  The prosecution should have read access to that evidence and/or information.  Lynch is requesting the following information to the roles played by the District Attorney of Los Angeles, LAPD’s TMU, and/or other government agencies who worked with and/or were under the control of the prosecution during Lynch’s 2012 trial and/or the current proceedings:
  • Whether the prosecutor and the agency conducted a joint investigation or shared resources related to investigating the case;
  • Whether the agency played an active role in the prosecution, including conducting arrests or searches, interviewing witnesses, developing prosecutorial strategy, participating in targeting discussions, or otherwise acting as part of the prosecution team;
  • Whether the prosecutor knows of and has access to discoverable information held by the agency;
  • Whether the prosecutor has obtained other information and/or evidence from the agency;
  • The degree to which information gathered by the prosecutor has been shared with the agency;
  • The degree to which decisions have been made jointly regarding civil, criminal, or administrative charges; and
  • The interests of the parties in parallel or generally related proceedings.
Favorable Information

17.       Any information that might held the defense attack the government’s case or mount an affirmative defense such as entrapment or the manufacturing of a crime.  In determining what must be disclosed under Brady the [prosecution’s] guiding principle must be that the critical task of evaluating the usefulness and exculpatory value of the information is a matter primarily for defense counsel, who has a different perspective and interest from that of the police or prosecutor.

18.       Any information relevant to evidentiary questions or important pretrial constitutional motions.  As serious issues related to First Amendment rights and the use of the restraining orders at issue as prior restraints upon Lynch’s speech, she is requesting any and all information related to the basis for any and all determinations that any communications at issue are not legitimate, made in good faith, and/or were sent solely with the “intent to annoy” Robert Kory and/or Michelle Rice. 

19.       As Lynch intends to raise an affirmative entrapment defense, and will address manufactured crimes, she is requesting any and all information related to LAPD’s 2011 report that contains information related to Detective Albanese, Beverly Hills Police Department, and her contacts with the District Attorney of Los Angeles.  In particular, LAPD’s report confirmed that Albanese communicated with William Hodgman and Wendy Segal and was advised that the elements of stalking were not present.  Albanese was also evidently advised that Cohen and his representatives, Kory & Rice, should pursue “intent to annoy” charges. 

20.       Any favorable information in the possession of the prosecution team.  That would include, but is not limited to, any information previously recorded and/or which was merely conveyed orally to a member of the prosecution team.  The format of the information does not determine whether it is discoverable.  The government must search for favorable information in reports, emails, text messages, discussions, or information obtained during interviews and information the prosecutor received during conversations with members of the prosecution team and/or witnesses.  As prior closed cases are covered by Brady materials, and Lynch did not receive any such information during the 2012 proceedings, this request is for any and all such information from the 2012 proceedings as well as the current proceedings. 

21.       Any and all information that tends to cast doubt on defendant’s guilt with respect to any essential element in any charged count.  That would include, but is not limited to, disclosure of any information that is inconsistent with any element of any crime charged.

22.       Any physical evidence, testing, or reports tending to make guilt less likely.  Specifically, Lynch is requesting access to physical copies of all original alleged Voice Mail messages from her 2012 trial, and those referred to throughout these proceedings, together with the names of any expert witness who reviewed same.  For example, the individual who informed Cohen and/or his representatives how to handle evidence that was not date/time stamped.  Lynch is requesting access to the actual recordings and not copied.  She would also like a written chain of evidence list which she was not provided during the 2012 proceedings.  Lynch has no indication as to how or what evidence came into the possession of LAPD’s Wilshire Division, LAPD’s Threat Management Unit, and/or the City Attorney of Los Angeles. 

23.       Any information that tends to support an affirmative defense. As stated herein, Lynch intends to pursue an entrapment defense that involves a manufactured crime.  Part of the manufactured crime will relate to federal tax matters, compliance with federal tax laws, and so forth. 

24.       Any information that tends to cast doubt on the admissibility of the government’s evidence.  Lynch is requesting any information that might have a significant bearing on the admissibility of prosecution evidence and/or cast doubt on the admissibility of evidence that the government anticipates offering in its case-in-chief.  For example, Lynch would like information as to precisely who in LAPD’s TMU and/or the City Attorney’s Office made any determinations whatsoever that she transmitted the fabricated email evidence at issue herein. 

25.       Any information that tends to support the defendant’s pretrial constitutional motions or tends to show that defendant’s constitutional rights were violated.  Lynch is requesting copies of training requirements on the part of LAPD’s TMU and members of the City Attorney’s Office with respect to First Amendment rights, federal tax laws and compliance with same, civil and/or criminal tax fraud, corporate malfeasance, corporate tax laws, and so forth. 

26.       Any information that tends to diminish culpability and/or support lesser punishment.

27.       Inconsistent statements by government witnesses regarding the facts of the alleged crimes or the alleged conduct of the defendant. Lynch is requesting this information for the 2012 proceedings as well as the current proceedings.  For example, any evidence that a prosecution witness has lied to the government about material matters during the course of the investigation.  Any information related to inconsistent statements made by key witnesses.  The witness interviews, including with respect to the 2012 proceedings that Lynch was not provided, should have been memorialized at the time.  That would include Leonard Cohen, Robert Kory, and Michelle Rice.  That information is Brady information. 

28.       Statements by others, including any and all witnesses not called previously at trial or who will not be called at trial in these proceedings, that are inconsistent with statements of government witnesses regarding the facts of the crime or the alleged conduct of the defendant. Lynch maintains that this request would include any statements of Leonard Cohen’s transmitted to the Phil Spector Grand Jury or used by the Spector prosecutors in the Spector case. 

29.       Any information that relates to the potential mental, psychiatric, and/or physical impairment of any witness.  That would include, but is not limited to, Leonard Cohen, Michelle Rice, and Robert Kory.  Lynch is requesting disclosure of any known substance abuse or mental health issues (such as depression, the use of psychiatric medications, and so forth) or other issues that could affect the witness’s ability to perceive or recall events, including psychiatric and/or medical issues.

30.       Any information relating to potential witness bias, including: benefits received by any witness (including possible informant status in the Spector case), disclosure of any benefits provided to testifying witnesses (including reduced charges, immunity, expectations that they would not be prosecuted, assistance with other criminal proceedings, assistance with immigration status considerations, monetary benefits, agreements, letters to other law enforcement or government agencies, and/or any other favorable treatment, promise, reward, or inducement provided to any witness by the prosecution team.  That team would, of course, include the Los Angeles District Attorney’s Office and the Phil Spector case. 

31.       Other known conditions that could affect the witness’s bias such as: animosity toward defendant, animosity toward a group of which the defendant is a member of with which defendant is affiliated, relationship with the victim, known but uncharged criminal conduct. 

32.       Information that calls into question efforts to present the witness as neutral and disinterested. For example, any incentive on the witnesses’s part that would shed light on his or her incentive to cooperate with the government and/or law enforcement. 

33.       Impeachment information that officers or others had “fed” parts of a witness’s story to the witness during questioning.  For example, any information related to Threat Management Unit’s assisting with the creation of tools, techniques, and/or restraining orders to build a case against Lynch. 

 Any information related to a witness’ dishonesty and/or criminality and/or probative of untruthfulness

34.       Disclosure of any facts of prosecution witnesses’s perjury in any proceedings or that any witness has lied to the government in the course of an investigation. 

Additional disclosures

35.       Any relevant oral statement made by the defendant in response to questioning by a person the defendant knew was a government agent, if the government intends to use the statement at trial.

36.       Any relevant written or recorded statement by the defendant in the government’s control or that the government can obtain by due diligence, including in the possession of LAPD’s TMU and/or the District Attorney of Los Angeles.

37.       The defendant’s prior criminal record.  That would include, but is not limited to, any FBI record.

38.       All documents and/or objects, including Voice Mail messages and any other physical forms of evidence, that are are material to preparing the defense, may be used by the government in its case-in-chief, or have been obtained from the defendant.

39.       Reports of any physical or mental examination or tests if the item is material to preparing the defense and the government intends to use the item in its case-in-chief.  That would include, but is not limited to, all materials the government provided domestic violence counselor Sandra Baca during the 2012 proceedings and her findings as well as other oral/written communications the government had with this expert.

40.       A written summary of any expert testimony that the government intends to introduce at trial.

41.       Any and all information, material to guilt and/or innocence, used during the 2012 proceedings whether or not that information is considered relevant in the current proceedings. 

Affirmative Entrapment Defense Information/Evidence

42.       Any and all findings on the part of Investigator William Frayeh, Los Angeles District Attorney’s Office related to his confirmation to Lynch that he would review communications between former DDA Alan Jackson and Stephen Gianelli [who most certainly functions as an operative desperately attempting to elicit information about Leonard Cohen, IRS and tax fraud, federal tax matters, and the Phil Spector case while discrediting Lynch, her witnesses, and targeting witnesses].  Investigator Frayeh informed Lynch that Gianelli may have found a “sympathetic ear” with Spector prosecutor Alan Jackson about Lynch. 

43.       Any and all information related to former DDA Pat Dixon’s communications with Spector trial attorney Bruce Cutler about Kelley Lynch.  In his entirely hearsay letter to the Sentencing Judge during Lynch’s 2012 trial, Bruce Cutler raised communications he had with Dixon about Lynch in 2008. 

44.       Any and all findings on the part of Investigator John Thompson who, together with Detective Silva, of the Los Angeles District Attorney’s Office was investigating matters evidently related to a complaint Lynch filed with the DA’s Internal Affairs Unit.  That complaint addressed threats involved threats made against Lynch by former DA Steve Cooley’s personal investigator, Marko, and further threats to arrest Lynch for requesting the return of her evidence in the form of a letter Phil Spector sent her which she permitted Investigator Brian Bennett to take with him and copy.  She did not provide that to the District Attorney’s Office as a gift. 

45.       Any and all information and/or reports related to Investigator Brian Bennett’s statements to Kelley Lynch that the District Attorney’s Office received an “anonymous” telephonic tip about her friendship with Phil Spector.  Brian Bennett, an investigator on the Phil Spector case, personally advised Lynch that the anonymous tip was placed to the DA’s office by a woman. 

46.       Any and all information as to when LAPD’s Threat Management Unit became involved with any investigation related to Lynch.  That would include, but is not limited to, any and all matters related to Leonard Cohen and/or Phil Spector. 

47.       The most significant responsibility of the TMU is the process of threat assessment, and implementing that threat assessment into a case management strategy. However, before any threat assessment of value may be done, detectives must obtain as much applicable information on the suspect and victim as available.  Lynch is requesting any and all information related to any such  game plan and/or case management strategy formulated with respect to her – as that would relate to her 2012 prosecution and the current proceedings.  For example, Leonard Cohen informed the Boulder Combined Court that California law enforcement instructed him to obtain the restraining order. 

48.       Any and all emails, voice mails, text messages, and/or other electronic communications the government, including all members of the prosecution team (such as LAPD’s TMU and/or the District Attorney’s Office) exchanged with a witness or potential witness and/or which mentions a witness or potential witness. 

49.       Trial preparing meetings with witnesses.  That would include with respect to the 2012 and current proceedings and should extend to the District Attorney’s Office, LAPD’s TMU, and the City Attorney’s Office. 

50.       Outcome of any prosecution investigation related to witness credibility and allegations.  For example, Lorca Cohen’s public allegation that her father molested her.   

51.       The names of the employees at the City Attorney’s Office who transcribed the alleged Voice Mail messages during the 2012 proceedings.  This resulted in wholly incoherent, fraudulent, and false representations of the alleged messages being transmitted to the jurors.  It also appeared intentional that criminal conduct on the part of witnesses was intentional deleted and/or distorted. 

52.       Name of Leonard Cohen’s private investigator who was present for a portion of the 2012 proceedings and reports related to any statements and/or information provided by him to the prosecution.

53.       The name of the female and male investigators, from the Los Angeles District Attorney’s Office, who were present in the courtroom throughout the 2012 proceedings. 

54.       Information and/or reports related to any prosecution/witness discussions following the March 23, 2012 proceedings where Leonard Cohen testified that he and Lynch were in a purely business relationship and she never “stole” from him – just his “peace” of mind. 

55.       As Lynch is pursuing an entrapment defense, that will involve a manufactured crime and fictitious course of conduct, she is requesting all information, witness statements, and/or reports in the possession of the prosecution that resulted in the summary of so-called evidence presented to jurors in the 2012 proceedings as follows:

Streeter:  So the people believe that the evidence will show in the case of People of the State of California vs. Kelley Lynch that during the 80s, Mr. Leonard Cohen, who was a singer ... struck up a relationship with Ms. Lynch.  They had a brief intimate relationship, and then at some point after that the relationship ended in the late 80s when Mr. Cohen’s business manager died, Mr. Cohen hired Ms. Lynch, first as his personal assistant, and then ultimately as his business manager.  But unfortunately around 2004 or so, things started to go not very well between Mr. Cohen and Ms. Lynch.  And Mr. Cohen ended the business relationship that he had with Ms. Lynch.  Unfortunately, that was not the end of it for Ms. Lynch, the evidence will show.  The evidence will show that shortly after the termination of the business relationship by Mr. Cohen that Ms. Lynch began an onslaught, a campaign of harassment on Mr. Cohen, and that harassment -- that harassment has continued or did continue up until February 29, 2012.  But during this campaign, the evidence will show, that Ms. Lynch started against Mr. Cohen, she did not just limit her contact toward Mr. Cohen.  Ms. Lynch contacted other people that were close to Mr. Cohen.  RT 37-39

There is – the evidence will show that Ms. Lynch was upset and Mr. Cohen and fought with the District Attorney’s office, the LA County District Attorney’s office didn’t file charges against Mr. Cohen.  RT 40  The evidence will show the evidence stopped, virtually stopped.  None from Ms. Lynch.  When did they start back up?  About the time Mr. Cohen’s world tour was over in 2011.  RT 40

56.       Any and all tax forms that DCA Streeter informed the jurors during Lynch’s 2012 trial that she was in possession of.  That would include, but is not limited to, 1099, K-1s, corporate balance sheets, and corporate tax returns for the years 2004 and 2005.  Streeter has, during the current proceedings, raised the tax statements and/or information. 

57.       Any and all information related to Streeter’s statements during the 2012 proceedings that the “tax statement” and/or Cohen’s “tax fraud” was a “ruse.” 

Now, in some of the emails there are mention by Ms. Lynch of failed business agreements and failure by Mr. Cohen to live up to his agreement of what she believed their business relationship was.  And indeed one of the things, the evidence will show, that she talks a lot about is tax fraud and the need to have the tax return.  But the People will submit to you or show to you that this so-called business relationship, or not honoring their business relationship, indeed the most important thing that she mentions every so often the tax statement is merely a ruse.  For example ... the evidence you will see ... that Ms. Lynch specifically asked for her K-1 form ... Let’s talk a little bit about Ms. Lynch’s need for the tax form or tax returns -- the evidence will show that Ms. Lynch was Mr. Cohen’s business manager.  The evidence will show that Mr. [sic] Lynch -- Mr. Cohen has no clue as to what a W-2 form is, a 1099 is, a K-1 form.  The evidence will show that Ms. Lynch is the one that had all of that information, knew all that information.  Mr. Cohen did not have it, does not have it and does not understand what it means.  Okay.  (RT 42-43)

58.       Any and all injunctions related to any corporation at issue herein.  Specifically, corporate injunctions extending to any corporate officer and/or federal Tax Matters Partner obtained by Blue Mist Touring Company, Inc. (Delaware corporation), Old Ideas, LLC (Delaware corporation), and/or Traditional Holdings, LLC (Kentucky corporation). 

59.       Any and all information related to LAPD’s 2011 determination that Lynch and Cohen were in a “sexual relationship” and explanation of how that related to a statutory required “dating relationship.” 

60.       Phil Spector Grand Jury transcripts if they indicate that Leonard Cohen’s statements were in fact transmitted to the Spector Grand Jury. 

Streeter:  Did Ms. Lynch ever mention People that both you and she knew?  … Cohen:  She talked about some well-known singers that both of us know.  Streeter:  I’m sorry … well-known – Cohen:  She talked about some well-known singers that both of us knew.  Streeter:  Such as who, Mr. Cohen?  Cohen:  Such as Bob Dylan.  Streeter:  What about – did she ever mention Phil Spector or Phillip in any of those?  Cohen:  Yes, she accused me of – she accused me of testifying before a Secret Grand Jury which resulted in the conviction of Mr. Spector.  Streeter:  Do you know Mr. Spector?  Cohen:  I knew him.  He produced a record of songs that we wrote together.  It was in 1977.  Streeter:  But you had no dealings with him since then; is that right?  Cohen:  No, I don’t believe – I haven’t seen him.  I don’t remember if it was ’77 or ’78 that the record came out.  But since then, no, I have had no contact with him.  RT 56-57

She accused me of testifying before a secret grand jury which resulted in the conviction of Phil Spector.  RT Streeter:  Okay, in any of her emails, did she ever mention Phil Spector?  Cohen:  She often mentioned Phil Spector, repeating over and over that I had testified before a Grand Jury and I was involved in the conviction of Phil Spector.  RT 60-61

61.       Any and all witness statements related to the Whole Foods accident involving Lynch’s son, John Rutger Penick, and/or the coordinated custody matter related to Lynch’s son, Ray Charles Lindsey.  This request would go to witness honesty and/or deceit. 

Streeter:  All right.  Did does Ms. Cohen [Lynch] have any children?  The Court:  Ms. Kelley – Ms. Lynch.  Streeter;  I’m sorry.  Does Ms. Lynch have any children?  Cohen:  Yes, Ma’am.  She has two sons.  Streeter:  Did she ever mention any of her children in any of the voicemail messages?  Cohen:  Yes, many times.  She – she accused me of being indirectly responsible for her losing custody of one child.  Streeter:  What was that child’s name?  Cohen:  That child’s name was Ray Lindsey – Streeter:  Does she have another child?  Cohen:  Yes, she has another child.  Streeter:  What’s that child’s name?  Cohen:  His name is Rutger Bennett [Penick].  Streeter:  Does she ever mention Rutger – Cohen:  Yes, many times she suggested I was responsible for an accident that befell him.  RT 57-58

Streeter:  Okay, and any of the emails did she ever mention her son Ray Lindsey?  Cohen:  Yes she did.  Streeter:  Did she mention her son Rutger in the emails?  Cohen:  Yes, Ma’am.  RT 62

62.       As Lynch is pursuing the possibility that all alleged (and unauthenticated evidence) electronic and/or email evidence transmitted to the Court during her 2012 proceedings may have been altered, she is requesting the actual copies that Leonard Cohen testified he personally transmitted to the Law Offices of Robert Kory and/or Kory & Rice, LLP together with the names of all individuals who had access to same.  In response to a 2011 request for tax information, Kelley Lynch received the following email from Leonard Cohen.  She believes it goes to bias and motive on the part of Cohen and his representatives as well as an unconscionable focus on her son, John Rutger Penick whenever tax matters are raised.  She also believes it proves that information, potentially relevant to criminal conduct or dishonesty on the part of the prosecution’s witnesses, may have been removed from any and all allegedly forwarded email evidence.

baldymonk@aol.com
<baldymonk@aol.com> Sat, Sep 24, 2011 at 12:35 AM

To: kelley.lynch.2010@gmail.com

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correction:
i see Rutger is copied in

63.       A copy of the Los Angeles Sheriff’s Department report related to their interview of Leonard Cohen with respect to the Phil Spector case.  This report was at issue during the 2012 proceedings but, at that time, was addressed in self-serving hearsay statements.  This report should be available to the prosecution team and/or in their possession. 

Streeter:  Do you recall if also in that voice mail message there was any mention of Phil Spector?  Cohen:  Yes, Phil Spector’s name was mentioned.  Cohen:  And his attorneys; is that right?  Cohen:  I believe so.  Streeter:  Now, is the discussion of Phil Spector something that is common in the voice mail messages that Ms. Lynch has left you?  Cohen:  It’s almost routine.  RT 157-158  Streeter:  What about the email messages that Ms. Lynch has sent you, particularly in the time period of February 2011 to February 2012?  Is the topic of Mr. Spector a common topic? Is the topic of Mr. Spector a common topic?  Cohen:  Yes, it is.  Streeter:  Would you say that that is almost routine as well?  Cohen:  Yes, it is.  Streeter:  Did you have any involvement in the Phil Spector trial?  Cohen:  None, whatsoever.  RT 158 Cohen:  May I qualify that?  Streeter:  Yes.  Cohen:  At the very beginning of the trial, after the – the death of Lana Clarkson was made public, I was visited by two Sheriffs from the LA County.  And they interviewed me as to my relationship with Phil Spector.  My attorney, Mr. Cron, was present at the time.  I told the detectives that Phil Spector had produced an album of mine in 1977, and they asked me about some stories that were circulating in the newspaper about his use of guns in the studio. I told them of my experience.  Then they asked me when I’d last seen Phil Spector.  I said the last I’d seen him was shortly after the record was released, which I think was 1977 or 1978, and I hadn’t seen him since.  When they discovered that I hadn’t seen him since, they were no longer interested in interviewing me and left.  So that has some connection I did have with the trial.  Subsequent to that, I’ve had nothing to do with the trial whatsoever.  Streeter:  Now, when you spoke to the detectives do you know where Ms. Lynch was?  Cohen:  My attorney, Mr. Cron, asked Ms. Lynch to leave the room, so that I think the attorney/client privilege would not be challenged.  Streeter:  But she was somewhere around?  Cohen:  She was in my house.  RT 159

64.       Any and all information that IRS or federal tax laws require taxpayers to request tax information more than one time in any given email or oral request and/or for what particular period of time that alleged rule and/or law would apply.  Lynch is also requesting the relevant IRS or federal tax rule and/or law that states that the request for IRS required tax and/or corporate information appear on the “first page” of any such request.   

Streeter:  The subject says, Kelley Lynch 2004 and 2005 federal tax returns.  Streeter:  Now, previously you testified that that was one of the issues that she had with you.  In looking at that – the first page of that email, do you see any mention at all about requests for tax returns?  Cohen:  No, Ma’am, there isn’t any.  RT 164

This is the other thing the people found a little interesting.  She knows what a 1099 is a K-1 -- a K-1.  Whoever heard of a K-1 before this case?  The FTB and the IRS.  Did anyone know there was a difference between the FTB and the IRS?  Or what the FTB is?  … This is a woman who knows what a K-1 is … RT 566

So this isn’t about Ms. Lynch being angry that she didn’t get her tax documents.  RT 577  So what you have here, what this is proof of is not a woman who legitimately wants her IRS records or documents.  It’s the unraveling of a con.  RT 578

Streeter:  Do you see any mention of a request for a K-1 form?  … Is there any request for a 1099?  RT 165 

Streeter:  Do you recall whether or not there was any mention of a request for tax returns?  RT 167

65.       Evidence, pursuant to DCA Streeter’s and Leonard Cohen’s statements to the Court during the 2012 proceedings, that an IRS holding re. the default judgment, Los Angeles Superior Court Case No. BC338322, exists.  Evidence that IRS determined that Leonard Cohen and/or the corporations he controlled were not required to provide Lynch with IRS required tax forms (1099, K-1s, corporate balance sheets, corporate tax returns) for the years 2004 and/or 2005 and that IRS determined that the 2006 default judgment altered their prior reporting and/or filing requirements.  Evidence that IRS accepts a fraudulent expense ledger as a substitute for IRS required forms 1099, K-1s, balance sheets, and/or corporate tax returns. 

Cohen:  Two courts had given me a default – or one court had given me a default judgment, the other court affirmed that default judgment.  But, more significantly, the IRS accepted the results of the default judgment and awarded me a tax refund, so Ms. Lynch had no cause to ask me for any taxation information.  The forensic report on which the default judgments were made were very specific and Ms. Lynch has read them.  That is the forensic report that Ms. Lynch has been asking for.  The only problem is she doesn’t like the results.  PD:  Okay.  Do you remember what my question was?  Streeter:  Objection; argumentative, Your Honor.  Court;  Sustained.  PD:  I’m asking you if – Court;  Why don’t you re-ask the question if you don’t think it’s been answered.  PD:  Did you talk to your manager who handles your tax to request those documents from 2001 to 2004?  Cohen:  No, Sir.  PD:  Okay.  Did you go about seeing about the K-1 that was being requested; yes or no?  Cohen:  No, Sir.  PD:  Did you go and give them Ms. Lynch’s information for you to send that information to?  Cohen:  No, Sir.  PD:  And we’ll get back to that judgment at a later time.  RT 279-283

66.       Evidence obtained from FBI related to their investigation into a murder, meth labs, meth distributions, and the Aryan Nation – including any information Lynch provided based on statements third parties made to her - together with their conclusion that this was an “implied threat” or Lynch’s intent to annoy Leonard Cohen. 

PD:  Okay.  You also mentioned that you were threatened with an email that referenced the Aryan Nation.  Do you remember that?  Cohen:  Correct.  PD:  I’m going to go ahead and show you that email, which has been marked as People’s 14.  Now, you just read that part that said Aryan Nation when you were asked about it, correct?  Cohen:  Right.  PD:  Now, the actual sentence says, P.S. more than one member of the Aryan Nation, so to speak, ended up protecting me on the streets of Santa Monica.”  That’s what the whole sentences says, correct?  And you’re aware that Ms. Lynch was actually homeless in Santa Monica?  Cohen:  Correct.  PD:  Nowhere does that sentence say anything about you, correct?  Cohen:  There are other emails.  PD:  I’m asking about this sentence.  Cohen:  This particular sentence has no reference to me, no – PD:  Okay.  And – Cohen:  -- Although there was an implied menace there.  PD:  Objection; speculation.  Court:  Overruled.  PD:  So that was an implied menace to you?  Cohen:  Yes, Sir.  When an enemy tells you that the Aryan Nation is protecting her, you would be concerned.  PD:  So you consider Ms. Lynch an enemy?  Cohen:  She considers me an enemy.  She mentions the fact that she’s my enemy forever in email after email.  RT 309-310

67.       Any and all prosecution information and/or reports of all witness statements related to the “IRS Binder.”  The prosecution presented the “IRS Binder” to the defense during Lynch’s 2012 trial.  Lynch was advised by her lawyers that this related to Robert Kory’s testimony although she was provided no information as to how that might be the case. 

Public Defender:  We received a binder from Ms. Streeter that was provided to her by one of the witnesses that includes, you know, we believe a highly relevant witness that goes to Mr. Kory’s anticipated testimony based on what she provided us.  He’s an agent of the IRS and we have subpoenaed him.  We received that information on Monday.  We subpoenaed him, he’s received that subpoena, but pursuant to federal regulations he has to clear that before he can testify with the appropriate authorities.  I spoke with the agent this morning.  That request is being considered and evaluated by their attorneys.  And as I said, they’ll give me an answer by this afternoon regarding whether or not he will be able to testify and as to what he will testify to.  Based on the fact that we received the binder on Monday, I think me and Mr. Kelly -- Court:  What does his testimony go to?

PD:  We believe it goes directly to the level of specific intent elements, Your Honor, that Ms. Lynch’s communications were not made with any intent to harass or annoy, and they were made in good faith, based on the actions taken by this agent, they fully corroborate Ms. Lynch’s intent.  We also think that on the secondary corollary matter, they go the vice motivation of the People’s witnesses.  Court:  Okay.  Well, I will consider that after I hear your information this afternoon.  RT 384-385.

68.       Evidence of Streeter’s expertise and/or education in the field of mental health diagnoses.  This is relevant and material as she requested, during the 2012 proceedings, that the Court commit Lynch to a domestic violence facility and potentially drug her against her will. 

69.       Copies of prosecution information and/or reports of all communications with Bruce Cutler and/or anyone representing his interests during the 2012 proceedings. 


DECLARATION REMOVED