IN THE APPELLATE DEPARTMENT OF THE
SUPERIOR COURT, COUNTY OF LOS ANGELES
STATE OF CALIFORNIA
THE PEOPLE OF THE STATE OF CALIFORNIA
SUPERIOR COURT
CASE NO.
Plaintiff and Respondent,
TRIAL COURT NO: 2CA04539-01
vs.
KELLEY LYNCH,
Defendant and Appellant.
APPEAL FROM THE HONORABLE JUDGE VANDERET LOS ANGELES SUPERIOR COURT
APPELLANTS OPENING BRIEF
STATEMENT OF THE CASE
On or about January 5, 2012, a complaint was filed charging Defendant and Appellant Kelly Lynch, (hereinafter “Kelley Lynch" or “Miss. Lynch”) with having committed on February 1, 2011 the offenses of Penal Code 273.6, 653M(B), 273.6(a), 653M(B), 653M(B) and 653M(B) On March 23, 2012 the court added a violation of 273.6(a) as counts 7, 8 and 9. Ms. Lynch pleads not guilty to all counts. (Court Transcript, hereinafter “C.T.” Page 23).
People’s motion to increase bail is made and the bail is increased to $25,000.00. (C.T.P.25.) Motion for own recognizance release is denied. On April 5, 2012 the case called for commencement of trial. Counts 4 and 5 are dismissed in furtherance of justice.
On April 4, 2012 the case is called for trial (C.T.P. 29.) The jury trial is then continued until April 5, 2012. The trial is then continued until April 6, 2012. (C.T.P. 34.) On April 10, 2012 the trial is concluded and the jury retires to commence deliberations (C.T.P. 107.)
The jury then reaches a verdict (C.T.P. 115.)
STATEMENT OF THE FACTS
Mr. Cohen is a songwriter and a singer (Reporters transcript, hereinafter “R.T.” page 49, line 13). Mr. Cohen confirms that he knows Ms. Lynch who worked for him as a personal manager for about 17 years. (R.T.P. 49. Ls. 24-25.) Cohen testified that they had a brief intimate relationship (R.T.P. 49, ls. 28-29.) Ms. Lynch was allegedly dismissed in 2004. “As soon as the relationship ended in 2004, Ms. Lynch began to e-mail me many e-mails a day” (R.T.P. 50, l. 28.)
Mr. Cohen was apparently alarmed by Ms. Lynch’s voice mail messages and emails. “ I was concerned about my safety and the safety of my children and grandchildren “ (R.T.P. 54, ls. 19-22.)
According to Leonard Cohen’s testimony with respect to the first group of e-mail messages: “I transcribed myself and typed into my computer and e-mailed them to my attorneys,” Robert Kory and Michelle Rice. (R.T.P. 55, l. 5). “The next batch, I recorded them from my house answering machine into a Sony cassette player and gave the cassettes to my lawyers” (R.T.P. 55, ls. 16-18). “Then the third batch I recorded with my sound engineer. We put them into CD’s and those I handed to my lawyer" ( R.T.P. 55. ls. 24). “And then recently I have a little sophisticated recorder that allows me to turn it into MP3 that I can mail to my lawyers” (R.T.P. 55, ls. 24-16).
“Her e-mails were routinely very long” (R.T.P. 59, ls. 3-4). “She often accused me of being on drugs, particularly when her voice was
allegedly slurred and intoxicated” (R.T.P. 59, ls.15-17). “Her e-mails often threatened to take me down” (R.T.P. 60, ls. 12-13).
Nikhil Ramnaney sets the record straight:
Around 2005, that’s when things began to change ... there were questions about the IRS and taxes ... He got his attorneys involved ... and his attorneys had a plan., The plan was to get Ms. Lynch to work with Mr. Cohen and to pin the blame on ... She said no, I’m not going to falsify anything. I’m not going to go out and do what you tell me to do, and she refused ... Well, she’s not going to help us. That means she’s going to hurt us. So they went after Ms. Lynch the best way they knew how. Using the legal system ... have done everything in their power to harm Ms,. Lynch ... she’s lost everything ... her job, her money, her child, all orchestrated ... if they ruin her credibility, well, that helps Mr. Cohen. And they have done everything in their power to hurt Ms. Lynch’s credibility. (R.T.P. 45, ls, 1-28.) They wanted to go and they went and tried to hurt her economically and to put a restraining order so they couldn’t have any contact during the litigation. That was their intent. That was their purpose. (R.T.P. 46, ls. 9-13.)
“We got a restraining order in 2006 and then Ms. Lynch left the jurisdiction, moved to Colorado and in 2008 we got a restraining order against Ms. Lynch from Colorado. And then in 2011 we got another restraining order.” The Colorado order is a civil harassment order that Miss Lynch requested at the hearing. This was registered in California, on May 25, 2011, as a domestic violence restraining order although Kelley Lynch and Leonard Cohen were never in anything that even remotely resembled a “dating relationship.”
Exhibit 3 for identification is the restraining order from 2005 (R.T.P. 70, ls. 1-3). The voice mail the people played to the jury would be a fair representation Ms. Lynch was leaving on Mr. Cohen’s answering machine prior to 2005 (R.T.P. 70, ls.1-3). After the e-mails certainly did not stop. (R.T.P. 70, l.28.) The voice mail did not stop (R.T.P. 71, ls. 3-5). The second restraining order was in Colorado (R.T P. 72, ls. 26-28). The second restraining order in Colorado was filed in California on May 2011 (R.T.P. 73, l. 14). People’s five for identification is a document that registers an out of state restraining order (R.T.P. 74, ln. 19). “Ms. Lynch was not calling or emailing during the period when I was on the road, around 2009, 2010”. “Ms. Lynch has many times, in her messages asked about getting an amended tax return.” (R.T.P.157, ls. 3-5).
Mr. Cohen received an e-mail on April 18, 2011. (R.P.T 161, ls. 8-12). It says, “Cohen told me Phillip never held a gun on him, and that would support what the LAPD believes.” “On e-mails Ms. Lynch continually accused me of testifying against Phillip Spector in the secret Grand Jury” (R.T P. 165, l. 24.)
NOTE: Mick Brown/UK Telegraph has now confirmed that he was in receipt of the Grand Jury Transcripts and Cohen's statements were presented to the Grand Jury. There was confusion re. statements vs. testimony. Cohen's statements were absolutely used in Phil Spector's prosecutors' motions.
From September 20th approximately to the end of February 1. 55 e-mails. They were all from .Ms. Lynch. (R.T.P. 182, ls. 17-28).
“The specific comment that was made was the perennial threat to take me down” (R.T.P. 194. Ls.3-4). Another e-mail says, “Cooley’s tough on crimes but doesn’t mind young men being maimed. He has to stand up to the fraud thief, Cohen” (R.T.P. 198, ls 22-25).
Ms. Lawrence is a law clerk with the City of Los Angeles. She received the black binder from Sandra Streeter (R.T.P. 222, ls. 14-15). She does not know where Ms. Streeter got them from. (R.T.P. 222, ls. 17-20). Ms. Lawrence never had seen any subpoenas from GMAIL or AOL (R.T.P. 20-25.) She did not know who the owner of the actual e-mail address is (R.T.P. 222, ls. 26-28).
Mr. Cohen recognized the voice mail to that of the voice of Ms. Lynch on February 15, May 11, and May 28, 2011 (R.T.P. 249, ls. 20-26 to 258, ls. 1-15).
On December 23, 2011, Mr. Cohen identified an e-mail specifying Leonard Cohen does have a small to non-existent penis (R.T.P. 293, ls. 9-10). Mr. Cohen considered the e-mail as vile. (R.T.P. 262, 20-28). From February 2011 through the end of June 2011 Mr. Cohen found such e-mails annoying (R.T.P. 262, ls .21-26). Mr. Cohen was annoyed by the voicemails during the time period of July 1, 2011 to the end of the year 2011 (R.T.P. 263, ls. 9-12). Mr. Cohen got it wrong as far as dates receiving the e-mail on March 11, 2012. It was actually March 11, 2011 (R.T.P. 270, ls. 21-28 to Page 271, ls. 2-8).
Mr. Cohen had hired Ms. Lynch to manage Mr. Cohen’s accounts. (R.T.P. 273, ls. 1-2). Mr. Cohen was very inactive in managing his own accounts (R.T.P. 273, ls. 3-5). Through time Ms. Lynch was entrusted implicitly with all of Mr. Cohen’s affairs (R.T.P 274, ls. 3-6).
NOTE: Kelley Lynch did not handle anything having to do with the corporate structures, corporate books and records, tax strategies, financial advice or investments, accounting, etc. Leonard Cohen was fully represented by experts in their field - who were lawyers, accountants, etc.
(Cohen alleged that) Mr. Cohen and Ms. Lynch had an intimate relationship, sometimes sexual that spanned for a period of time (R.T.P. 275, ls 13-25). At another hearing on March 23 Mr. Cohen was asked if his relationship with Ms. Lynch was purely a business relationship and answered yes - he later acknowledged lying (R.T.P. 276, l. 17-28). Their personal and business relationship ended in October of 2004 (R.T.P. 277, l.17).
Mr. Cohen did not request documents from 2001 through 2004 from his manager that requested his taxes (R.T.P. 283, ls. 10-13). Mr. Cohen’s attorneys are Robert Kory and Michele Rice (R.T.P. 283, ls. 15-21).
Mr. Cohen obtained a civil harassment order in 2008 from Colorado (R.T.P. 298, ls. 21-28.) The order was not registered in California until 2011 (R.T.P. 300, ls. 22-23). It was registered in Los Angeles as a domestic violence order although Cohen and Lynch were not in a dating relationship, ever (R.T.P. 301, ls. 10-13).
If you could just take the words without the tone there is nothing threatening there (R.T.P. 313, ls. 18-22). Ms. Lynch never said she was going to kill Mr. Cohen (R.T.P. 314, ls. 28). Ms. Lynch never said that she was going to see Mr. Cohen at a particular place or location (R.TP. 315, ls. 3-4).
People’s Exhibit 24 contained an attachment of the Colorado restraining order. Michele Rice (hereinafter “Ms. Rice”) sent it on February 14, 2011. Half an hour later she alleged that she received approximately 95 e-mails. Ms. Lynch in the e-mail said it was a fraudulent restraining order and she needed tax information (R.T.P. 333, ls. 20-23). Ms. Rice would personally save the e-mails during the period between 2004 and 2011 if they were on her yahoo! Small Business Account (R.T.P. 362, ls. 14-23). She did not sit there and supervise if the e-mails were for Mr. Kory. (R.T.P. 363. Ls. 13-28).
On May 25, 2005 one day after a SWAT team incident a custody manner had been filed (R.T.P. 462, ls. 11-15). “ I don’t know Mr. Kory at all. I had lunch with him, I stopped by his office and I saw him at the restraining order hearing at Boulder“ (R.T.P. 462, ls. 18-27). “I went to a lunch meeting with Robert Kory. I was told by Mr. Kory that there was fraud, tax fraud on every entity: Blue Mist Touring Company, Inc., Traditional Holdings, LLC, LC Investments, LLC. There were problems with the Stranger Music deal that also had tax issues. Mr. Kory asked if I would mediate on Mr. Cohen’s side against his advisors. Mr. Kory told me that Arther Indursky, Don Friedman and Stuart Fried of Grubman, Indursky Firm committed fraud and inducement, as did Greg McBowman.”
Ms. Lynch met Mr. Cohen in 1984 when she was employed by the law firm of Machat and Machat. She began working with Mr. Cohen after Mr. Machet died (R.T.P. 448, ls. 13-24). She worked from as Cohen’s personal, manager from April 1988 until 2004. In several e-mails Ms. Lynch was requesting to be paid in regard to commissions, deals etc. (R.T.P. 457, ls. 11-28). At no time during 2004 through 2005 did the police contact Ms. Lynch regarding the threatening of Mr. Cohen and his children or Mr. Kory (R.T.P. 466, ls. 1-8). There are no threats and LAPD was clear in their report - the emails were generally requests for tax information.
“I spoke to Bill Betzer on April 15, 2005 after I paid my taxes in full (R.T.P. 463, ls. 20-23). I did receive an email -- I mean I did receive a phone call from Agent Kelly Sopko of the Treasury regarding this matter. And I did meet with her and her partner, whose name is Brandon” (R.T.P. 464, ls.13-16). “Well, I think I attached Agent Sopko’s email to me, saying that she found an appropriate individual for me, which is Agent -- to report this to, which is Agent Luis Tejeda of the IRS Unit in Los Angeles” (R.T.P. 468, l. 24, 469, ls. 11-13, 18-26). “I was never served with a lawsuit.” “I read the complaint when it was put online in April of 2010 and I was astounded at the allegations.” “I was not represented.” (R.T.P. 469, ls. 11-21) From 2006 to 2012, Ms. Lynch never received any of the tax information she requested from Mr. Cohen (R.T.P. 478, ls. 26-28).
“One of the main reasons I contacted Leonard Cohen is for - I have K-1s that were transmitted to the IRS that do not belong to me. I was not a partner on LC Investments. That causes tremendous confusion with my taxes “ (R.T.P. 497, ls. 1—19.)
“None of the e-mails are harassing. I feel like I’m being harassed by not being given the information.” “Another e-mail has to do with the fact that I think Leonard Cohen has lied about Phil Spector holding a gun on him” (R.T.P. 501, ls, 24-27).
Ms. Lynch was at the restraining order hearing in Colorado: “I told the judge I felt Leonard Cohen was dangerous to me and asked if this restraining order would protect me, that’s correct. There was no evidentiary hearing” (R.T.P. 511, ls. 18-21). “I actually filed a motion to vacate with Judge Enichen after I went back and I realized that Leonard Cohen’s perjury and fraud were excessive” (R.T.P. 512, ls. 14-17). Ms. Lynch understood that she could have no contact with Leonard Cohen from 2005 until 2008. Ms. Lynch never served or notified the default judgment on May 15, 2006 as she was homeless. (R.T.P. 525, ls. 12-17.) The prosecutor and Cohen (who altered the voicemails with a sound engineer - sound, speed, and volume - alleged that: Not all of those voicemails were when Ms. Lynch was sober. Prosecutor: You were sober when you made those, correct? There were some when I drank too much. Leonard Cohen has testified that I was slurring, right (R.T.P. 527, ls. 10-15). And I found the sound distorted. I couldn’t tell (R.T.P. 527, ls. 24-25).
ARGUMENTS
I. NO REASONABLE JURY COULD HAVE CONVICTED THE DEFENDANT BEYOND REASONABLE DOUBT FOR EACH AND EVERY ELEMENT OF THE CRIME CHARGED
In reviewing a judgment of conviction, the Appellate Court must view the evidence in the light most favorable to the prosecution and presume, in support of the judgment, the existence of every fact the trier could reasonably deduce from the evidence. People vs. Sweeny 556 Cal.App.2d 198, 198 Cal.Rptr. 182 (1960). The court does not, however, limit its review to the evidence favorable to the prosecution. People vs. Johnson 26 C3d 537, 162 Cal.Rptr. 431 (1980). The court must resolve its issue in light of the whole record - that is the entire picture of the defendant put before the jury – may not limit its appraisal to isolated bits of evidence selected by the respondent and the court must judge whether the evidence of each of the essential elements is substantial. People vs. Basset 69 C2d 122, 70 Cal. Rptr. 913 (1968). It is the function of the Appellate court in reviewing a criminal conviction on appeal to determine whether the record contains any substantial evidence tending to support the finding of the trier of fact, and in considering this question must view the evidence in the light most favorable to the finding. In Re P 103 Cal.Rptr. 425, 7 Cal.3d 801 (1972). As specified in In Re P the Supreme Court of California held: “The prosecution burden is a heavy one. To justify a conviction, the trier of fact must be reasonably persuaded to a near certainty. The jury must therefore have reasonably rejected all that undermines confidence. Accordingly, in determining whether the record is sufficient in this respect, the appellant court can give credit only to “substantial evidence.” i.e., evidence that reasonably inspires confidence and is of solid value.”
The jury instruction given to the jury is as follows:
The Defendant is charged in counts Two and Four with making annoying or harassing phone calls and emails to Leonard Cohen, in violation of Penal Code 653. Two alleges that such calls and contacts were made on or between February and June 30, 2011. Count Four alleges that such calls and contacts were made on or around the dates of July 1, 2011 and January 9, 2012.
To prove the defendant is guilty of this crime, the People must prove that: 1) the Defendant made repeated telephone calls or repeated contact by e-mails combination; 2) the Defendant made such phone calls and/or contacts with the intent to annoy and harass Leonard Cohen; and, 3) the calls or contacts were not made in good faith or in the ordinary course of business.
It is not necessary that the conversation actually ensued from the telephone call or emails for the statute to be violated.
A. THE EXHIBITS PROFERRED BY THE PROSECUTION WERE NOT AUTHENTICATED AND INADMISSIBLE
Under Evidence Code 250 electric email is considered a writing. Any writing must be authenticated. Evidence Code 1400-1401 Authentication of a writing means a) introduction of evidence sufficient to sustain a finding that is the writing that the proponent of the evidence claims it is or b) the establishment of such facts by any other means. Another way to authenticate writing is to show a chain of custody.
Chain of evidence is defined as follows: In evidence, the one who offers real evidence, such as narcotics in a trial of a drug case, must account for the custody of evidence from the moment it reaches his custody until the moment it is offered into evidence, and such evidence goes to the weight not the admissibility of evidence.(quotes) For example, “chain of custody is proven if an officer is able to testify that he or she took control of the item of physical evidence, identified it, placed it in a locked or protected area, and retrieved the item being offered on the day of trial. (quotes). BLACKS LAW DICTIONARY 6th Edition, Nolan, Joseph 1990
Where defect in chain of custody of evidence is alleged, prosecution must introduce sufficient proof so that a reasonable juror could find that evidence is in the substantially the same condition as when it was seized, and may admit evidence if there is reasonable probability that evidence has not been changed in important respects. U.S. v. Matta-Ballesteros, 71 F2d 754, C.A. 9 (Cal. 1995) opinion amended on denial of rehearing 98 F. 3d 1100, certiori denied 117 S. Ct. 965, 519 U. S. 1118, 136 L.Ed. 2d 850.
There were no foundational facts sufficient to constitute a chain of custody. Mr. Cohen as specified in the record transcribed the messages himself. This is not a reliable source. This mishandling of the evidence is unwarranted and diminishes the credibility of the evidence. Therefore such evidence constitutes reversible error. Furthermore to allow Mr. Cohen to enter evidence that was processed through his sound engineer is another instance where the evidence is tainted. This is another fact which points to an error with the evidence presented and ruled upon by the judge.
B. THE WORDS ATTRIBUTED TO MS. LYNCH WERE PROTECTED BY THE FIRST AMENDMENT FREEDOM OF SPEECH
In a recent federal case U.S. v. Cassidy 814 F. Supp2d 574 (2011) .there were words uttered through a twitter communication. The recipient of the tweets was a public figure. The court in dismissing the case ruled that Mr. Cassidy was being prosecuted on the content of his speech not conduct. As the Supreme Court has noted “the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern” is the core of First Amendment protections , even when it where speech includes “vehement, caustic, and sometimes unpleasantly sharp attacks” New York Times v. Sullivan, 376 U.S. 254, 270 (1964).
In U.S. v. Cassidy 814 F. Supp2d 574 (2011) the court dismissed the case on the bases that a public figure has a high threshold in regard to a finding that words about them are annoying. A content based restriction on protected speech must survive strict scrutiny U. S. v. Playboy Entmt Group, Inc.529 US 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). Mr. Cohen is a public figure. Such utterances are the an unavoidable consequence of being a public figure. Therefore the instant case should be reversed.
C. THE PROSECUTION’S PROFERRED EVIDENCE WAS INSUFFICIENT TO PROVE VOICE MAILS AND E-MAILS VIOLATED THE STATUTE.
Under the statute prohibiting obscene electronic communications made with intent to annoy, the meaning of the words must be contextual, the matter must be judged in its entirety, including in the context in which it is presented. In Re C.C. (2009) 100 CalRptr 3d 746, 178 Cal.App.4th 915 In In Re C.C. the court looked to People v. Hernandez (1991) 231 CalApp3d 1376, 283 Cal.Rptr 81. Hernandez involved a traditional type of annoying telephone call, where Hernandez repeatedly called a woman over a two week period, hurling abuse by using vile terms such as calling her a fat “bitch”, a whore and a “C”.
The Miller test was developed in the 1973 case Miller v. California. It has three parts:
Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The work is considered obscene only if all three conditions are satisfied.
The definition of obscene has three distinct parts, offensive to ones feelings, or to prevailing notions of modesty, or decency: lewd.
In the instant case Ms. Lynch did not use any such words that would violate the statute. Her words “take you down” do not connote any decency subjects. As reflected in the transcript, Ms. Lynch never indicated she was going to harm Mr. Cohen. Ms. Lynch never tried to get Mr. Cohen to go to a particular place at a particular time.. Furthermore Mr. Cohen has been known as an artistic ideologue of indecent proclivities. Leonard Cohen has published what is known as the most obscene book ever published in Canada, “Beautiful Losers.” He has written lyrics such as “don’t go home with your hard on” and “give me crack and anal sex.” Cohen recently gave his blessings and interviews to a biographer who has a chapter titled “Children, Taxes, and Lost Pussy.” Leonard Cohen is not offended by obscenities and most certainly not by expletives, which is what Ms. Lynch used out of extreme frustration.
The evidence proffered in this case is for a legitimate business purpose. Ms. Lynch had to do her taxes and was entitled to her tax records. The record reflects that several of those persons who were in possession of the records never contacted Ms. Lynch. This quest for records rebutts a key element in the Prosecution’s case.
Furthermore there was also evidence that Ms. Lynch (and the State of Kentucky and IRS) received documents like the K-1s from other sources (Leonard Cohen, as the sole owner of LC Investments, LLC) that were not the property of Ms. Lynch. This is another legitimate reason for Ms. Lynch to request tax records/information from Mr. Cohen which included requests to rescind the illegal K-1s that are evidence of felonies.
An error will be held prejudicial where there exists such an equal balance of reasonable probabilities as to leave the reviewing court in serious doubt as to whether the error had affected the result. Whether there is prejudicial error resulting in a miscarriage of justice must, in the last analysis, depend upon the particular facts of the individual case. People vs. Weatherford 27 C2d 401 164, P2d 753 (1945) (EMPHASIS ADDED). The facts of this case are certainly in dispute. Both versions of the events are contradictory. As to the totality of circumstances, however, the exaggerations of the alleged victim are more pronounced. There are two versions of the event. One version is that Ms. Lynch was sending e-mail and voice mails to Mr. Cohen to harass and annoy him. The other version is that these e-mails and voice mails were not authenticated and should be stricken. The other inference is that the e-mails were for the purpose of Ms. Lynch requesting the tax records, financial data, royalty statements, accounting information, etc. for her personal records and tax filing purposes.
The un-corroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable People vs. Scott 21 Cal.3d 284, 296 (1978). An appellate court will assume every fact and inference, which the trier of fact could reasonably have deduced from the evidence People vs. Hanggi 265 Cal.App.2d Supp. 969, 972, (1968). To warrant reversal, it must be made clearly to appear that, on no hypothesis, is there substantial evidence to support the conclusion of the lower court People vs. Mayberry 15 Cal.3d 143, 150 (1975). Again by reviewing the facts of the case there is no substantial evidence to support the conclusion of the jury.
D. A CRIMINAL DEFENDANT HAS THE RIGHT TO COMPEL THE ATTENDANCE OF WITNESSES AT TRIAL
A criminal defendant has the due process right to compel the attendance of witnesses at trial: United States Constitution VI, XIV, California Constitution Article 1 Section 15, Penal Code Section 683. In the instant case, the trial judge made a reversible error by failing to allow the IRS Agent Luis Tejeda to testify on behalf of Ms. Lynch. The witness would be able to testify as to the tax predicament the Ms. Lynch was in; the fact that the 2005 refund could not possibly close the IRS case re. the allegations Lynch brought to Tejeda’s attention in 2007; the illegal K-1s from LC Investments, LLC; whether a 1099 or tax documents (IRS filing and reporting requirements) could violate a restraining order - as Kory and Rice have alleged, etc. She had no other choice but to insist that she obtain tax documents to clear her name.
F. THE RESTRAINING ORDER REGISTERED IN CALIFORNIA WAS NEVER SERVED ON MS. LYNCH AND THEREFORE ANY ACTION IS NULL AND VOID AS SHE NEVER RECEIVED NOTICE AND THEREFORE SAID CONVICTION IS VIOLATIVE OF MS. LYNCH DUE PROCESS RIGHTS.
In the instant case Ms. Lynch specified that she was not served the California registered order (and was under the impression the Boulder order expired). If indeed that is the case there would be no way that the proof of service would be true. No proof of service was attached to the registered order. Therefore use of the restraining order in California would not be valid and the conviction for violating it would be reversible.
E. THE PROSECUTIONS ARGUMENTS WERE OUTRAGEOUS AND CONSTITUTE REVERSIBLE ERROR
In the instant case the prosecution alluded to the fact that Ms. Lynch apparently stole $150,000.00 from Mr. Cohen. This was not true as there was evidence that Mr. Cohen was the one who owed Ms. Lynch money. Furthermore Ms. Lynch had contacted the District Attorneys Major Fraud unit to report the problems with Leonard Cohen and his theft from her in the millions, tax fraud, etc.
Another extremely important point is that there was mention that Mr. Cohen had lied about Mr. Phil Spector to the grand jury. In fact, Leonard Cohen’s statements were apparently presented to the Grand Jury. His statements regarding Phil Spector and a gun incident appeared in the prosecutors motions in the Phil Spector trial. Unfortunately, that version of the gun incident is contrary to the two additional versions of Leonard Cohen’s Phil Spector gun stories in this trial alone. Therefore, there are three versions of Leonard Cohen’s gun story incident re. Phil Spector before LA Superior Court. The versions involve a gun to the head, a gun to the neck, a gun to the chest, an automatic weapon, and a semi-automatic weapon. Additional versions in the news media involve a bottle of wine in one hand. The prosecutors in Phil Spector’s trial omitted that detail. All of this will be addressed more fully in Kelley Lynch’s Writ of Habeas Corpus - as will every lie and perjured statement made by prosecutor Sandra Jo Streeter, Leonard Cohen, Robert, Kory, Michelle Rice, and Captain Jack Horvath.
The Prosecutor’s office for whom Deputy City Attorney Streeter works (in the Domestic Violence Unit although Lynch and Cohen were not in a dating relationship and there is no domestic violence), together with the District Attorney’s office, have a vested interest in making sure that the prosecution of Mr. Spector remains intact. They clearly do not want the verdict overturned. The District Attorney failed to prosecute Mr. Cohen for fraud. Prosecutor Alan Jackson appears to be in charge of the Major Fraud Unit that would technically prosecute individuals for fraud, theft, etc. over $300,000. In this instance, Leonard Cohen has stolen millions from Kelley Lynch. The protection of Mr. Cohen seems to be borne out by the instant case in which Ms. Lynch is being unlawfully prosecuted.
Objection to the misconduct must be made at trial before the point may be raised on appeal unless a timely objection and admonishment would not have cured the harm. People v. Guiton (1993) 4 Cal4th 253, 17 Cal Rptr2d 365 In this instance case the Los Angeles City Attorneys office should have recused itself instead of attempting to silence the truth. An objection would not have reversed the inconceivable harm Streeter created for Kelley Lynch - based on lies, concealment of exculpatory evidence, etc.
II. THE APPELLANT SHOULD HAVE BEEN ACQUITTED ON THE CHARGES DUE THE INSUFFICIENCY OF EVIDENCE
When the sufficiency of the evidence is challenged, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” People vs. Kelly 51 Cal.3d 931, 956, (1990) citations omitted. This insufficiency of the evidence stems from testimony that is tainted. Furthermore there are a myriad of issues which constitute a denial of a fair trial of Ms. Lynch. She was arrested and then at her bail hearing her bail was increased. She was subject to a prosecution where her acts were condemned from the start. Another interesting act of unfairness was Mr. Kory testifying in a custody battle against Ms Lynch when in reality he only had lunch with Ms. Lynch once. As indicated, Mr. Kory - at that lunch - attempted to convince Ms. Lynch to testify on Mr. Cohen’s behalf and essentially blame other parties for Leonard Cohen’s wrong doing and tax problems.
CONCLUSION
Based on the above it is respectfully requested that the instant case be overturned and dismissed.
Dated: 17 December 2012
Respectfully Submitted
Francisco A Suarez
Attorney for Appellant
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