PROSECUTORIAL MISCONDUCT
The prosecutor has a legal and ethical duty to promote truth and to refrain from conduct that impedes truth. The prosecutor has the overriding responsibility not simply to convict the guilty but to protect the innocent. The prosecutor has a constitutional obligation not to use false evidence or to suppress material evidence favorable to the defendant. A prosecutor may impede the truth-finding process in several ways: (1) distorting the truth by attacking the defendant's character, misleading and misrepresenting facts, and engaging in inflammatory (2) subverting the truth by making false statements and presenting false evidence; (3) suppressing the truth by failing to disclose potentially truth-enhancing evidence or obstructing defense access to potentially truth- enhancing evidence; and (4) other truth-disserving conduct that exploits defense counsel's misconduct and mistakes and prevents introduction of potentially truth-serving defenses. The prosecutor also has an affirmative duty to assist the defense in discovering the truth through discovery rules and by conferring immunity on potentially truthful defense witnesses.
The courts have recognized that a prosecutor has a special duty not to impede the truth. That duty has been recognized implicitly in cases where courts have reversed convictions when the prosecutor engaged in conduct that distorted, subverted, or suppressed the truth. In Berger v. United States, 295 U.S. 78 (1935), the seminal case defining the prosecutor's legal and ethical role, the Supreme Court contémplated prosecutorial misconduct in a criminal case … implied that the prosecutor's duty to serve justice includes the avoidance of conduct that deliberately corrupts the truth-finding process. The prosecutor's conduct, both in presenting evidence and argument to the jury, was characterized by the Court as an “evil influence” that was “calculated to mislead the jury.” The misconduct during the evidence phase included: misstating facts during cross-examination; falsely insinuating that witnesses said things they had not said; representing that witnesses made statements to him personally out of court when no proof of this was offered; pretending that a witness had said something which he had not said and persistently cross-examining him on that basis; and assuming prejudicial facts not in evidence. The prosecutor's closing argument contained remarks that were intemperate," "undignified," and "misleading," including assertions of personal knowledge, allusions to unused incriminating evidence, and ridiculing of defense counsel.
The prosecutor's tactics in Berger are familiar examples of how a prosecutor can corrupt the fact-finding process. One way a prosecutor violates the duty to truth is by deliberately distorting the evidence. Prosecutors do this in several ways: attacking a defendant's character without a valid evidentiary purpose; misleading the jury and misrepresenting the facts; and inflaming the passions and prejudices of the jury. Character proof, as every trial lawyer knows, is one of the most dangerous types of evidence. The capacity of proof of a defendant's criminal past to skew the jury's proper evaluation of the truth has been documented. By insinuating that a defendant's criminal background makes it more likely that he committed the present crime, the prosecutor encourages the jury to find the defendant guilty based on speculative, confusing, and inflammatory considerations.
Prosecutors employ a variety of tactics to unfairly impugn a defendant's character. They accomplish this directly through proof of prior crirninality, by innuendo during the examination of witnesses about the defendant's criminal past, and by proving that the defendant associates with undesirable persons.
Misleading conduct distorts the search for truth by confusing the jury's rational view of the evidence. The potential for a prosecutor to mislead inheres in virtually every phase of the trial, from offering evidence, questioning witnesses, making comments, and presenting argument. Since the jury is likely to place great trust in the prosecutor as the embodiment of law enforcement, the prosecutor's ability to mislead the jury is greatly enhanced.
Misleading conduct attempts to create in the jurors' minds damaging and prejudicial innuendos without any basis in fact. The potential to mislead is especially enhanced because the prosecutor's prestige and standing as a law enforcement expert make his representations presumptively reliable.
MISSTATEMENT OF EVIDENCE:
“It is elementary ․ that counsel may not premise arguments on evidence which has not been admitted.” (George ) Johnson v. United States, 121 U.S.App. D.C. 19, 21, 347 F.2d 803, 805 (1965); see also United States v. Jenkins, 140 U.S.App. D.C. 392, 397, 436 F.2d 140, 145 (1970) (quoting (George) Johnson.) The applicable principles were summarized in some detail in Gaither v. United States, 134 U.S.App. D.C. 154, 413 F.2d 1061 (1969):
The federal courts generally, and this court in particular, have strictly enforced the obligation of the prosecutor to avoid making statements of fact to the jury not supported by proper evidence introduced during trial. This rigor is based on the Supreme Court's observation in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), that the interest of the Government in a criminal prosecution ‘is not that it shall win a case, but that justice shall be done,’ and that ‘the average jury has confidence that these obligations (of fairness and accuracy) will be faithfully observed.’
Standard 3- 1.2 The Function of the Prosecutor
(a) The office of prosecutor is charged with responsibility for prosecutions in its jurisdiction.
(b) The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.
(c) The duty of the prosecutor is to seek justice, not merely to convict.
(d) It is an important function of the prosecutor to seek to reform and improve the administration of criminal justice. When inadequacies or injustices in the substantive or procedural law come to the prosecutor's attention, he or she should stimulate efforts for remedial action.
(e) It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined by applicable professional traditions, ethical codes, and law in the prosecutor's jurisdiction. The prosecutor should make use of the guidance afforded by an advisory council of the kind described in standard 4-1.5.
FALSE TESTIMONY
In Freeman, 2011 WL 2417091, a 7th Circuit panel affirmed the district court’s grant of a new trial. Relying on the Supreme Court’s holdings in Napue v. Illinois, 360 U.S. 264 (1959), United States v. Bagley, 473 U.S. 667 (1984), and United States v. Agurs, 427 U.S. 97 (1976), the panel upheld the district court’s determination that there was a reasonable likelihood that the false testimony could have affected the jury’s judgment and that if not for the improprieties, the defendants would have been acquitted.
In United States v. Agurs, 427 U.S. 97 (1976), the Supreme Court explained that the rule of Brady v. Maryland, 373 U.S. 83 (1963), applied in different situations. The first being those instances when the prosecution knew or should have known about perjured testimony. These situations are fundamentally unfair. Convictions obtained therein must be set aside. This requires a finding that there existed a reasonable likelihood that the false testimony could have affected the jury’s judgment. Agurs, 427 U.S. at 103.
The Second Circuit has applied the Agurs analysis to set aside convictions when the government’s witnesses have presented perjured testimony. See, United States v. Mele, 462 F.2d 918 (2d Cir. 1972) (the government’s deceit including untruthful testimony, deliberate excisions from reports, preparation of false reports and repeated misrepresentations required a new trial); Perkins v. LeFevre, 691 F.2d 616 (2d Cir. 1982) (the prosecution’s failure to provide the witness’ rap sheet to the defense after the witness denied any convictions which were recorded on his criminal history resulted in the granting of a writ of habeas corpus.); United States v. Wallach, 935 F.2d 445 (2d Cir. 1991) (the perjury of the government’s witness required a reversal of the convictions when the government in redirect and in closing argument made much of the witness’ motive for telling the truth.); United States v. Vozzella, 124 F.3d 389 (2d Cir. 1997) (the government’s use of business record evidence that it knew contained fictitious entries, and according to its author were false in their entirety, required reversal when the government conducted no further inquiry into the veracity of the records.); Jenkins v. Artuz, 294 F.3d 284 (2d Cir. 2002) (the prosecutor’s failure to correct the record in spite of the witness’ false testimony and her argument in summation relying on that false testimony was sufficient basis to grant a writ of habeas corpus); and Drake v. Portuondo, 553 F.3d 230 (2d Cir. 2009) (the prosecutor knowingly elicited false statements from a witness and did not correct the record when the witness testified falsely about conversations he had with the prosecutor - this was sufficient to grant a writ of habeas corpus.).
The importance of the Freeman decision is the imposition of a duty on the prosecutor to investigate his/her witnesses. The government’s counsel may no longer contend “I didn’t know,” or “the witness was simply mistaken,” or “the defense attorney had a sufficient opportunity to cross examine the witness.” Defense counsel should put the government on notice of a witness’ perjury, record proper objections, and challenge the government’s failure to correct the record. Building on the Supreme Court decisions and adding the direction in Freeman, counsel should argue the government’s failure to fully investigate its witnesses is a sufficient basis to set aside a conviction, obtain a new trial or otherwise secure a dismissal in the appropriate criminal prosecution.
The State's Knowing Elicitation of Perjury
Since at least 1935, it has been the established law of the United States that a conviction obtained through testimony the prosecutor knows to be false is repugnant to the Constitution. See Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 79 L.Ed. 791 (1935). This is so because, in order to reduce the danger of false convictions, we rely on the prosecutor not to be simply a party in litigation whose sole object is the conviction of the defendant before him. The prosecutor is an officer of the court whose duty is to present a forceful and truthful case to the jury, not to win at any cost. See, e.g., Jenkins v. Artuz, 294 F.3d 284, 296 n. 2 (2d Cir.2002) (noting the duty of prosecutors under New York law "to seek justice, not merely to convict").
Despite the fundamental nature of the injury to the justice system caused by the knowing use of perjured testimony by the state, the Supreme Court has not deemed such errors to be "structural" in the sense that they "affect[] the framework within which the trial proceeds." United States v. Feliciano, 223 F.3d 102, 111 (2d Cir.2000) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-10, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (brackets in original)). Structural errors are those that "`so fundamentally undermine the fairness or the validity of the trial that they require voiding [the] result [of the trial] regardless of identifiable prejudice.'" Id. (quoting Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir.1996)). Instead, even when a prosecutor elicits testimony he or she knows or should know to be false, or allows such testimony to go uncorrected, a showing of prejudice is required. But the Supreme Court has made clear that prejudice is readily shown in such cases, and the conviction must be set aside unless there is no "reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); see also United States v. Wallach, 935 F.2d 445, 456 (2d Cir.1991) (citing Agurs and adding that the Supreme Court cases mean that "if it is established that the government knowingly permitted the introduction of false testimony reversal is virtually automatic" (quotation marks omitted)). This then is the "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), that we must apply in the case before us. And to do this we must ask: (1) whether false testimony was introduced, (2) whether that testimony either was or should have been known to the prosecution to be false, (3) whether the testimony went uncorrected, and (4) whether the false testimony was prejudicial in the sense defined by the Supreme Court in Agurs.
TRIAL TRANSCRIPTS
General Objection At Trial:
Public Defender: I want to make a standing objection for leading questions for the hearsay for the emails obviously, and the foundation that -- and also for the best evidence rule … there’s been a lot of testimony regarding statements, the contents of writings that have not been produced. RT 190
DISTORTS EVIDENCE:
This is a quote I repeated. His Holiness Kusum Lingpa said, and he knows Leonard Cohen, that he is an ässhole who is going to hell.” I do think His Holiness is entitled to his opinion. Beyond that, Leonard Cohen clearly distorted this quote intentionally and this is done throughout the trial. I think this is the best example of how the prosecutor and Cohen distort evidence and misstate facts. Why would Streeter ask Cohen “What did she call you, sir?” when it is clear that I was quoting Lamasang who is His Holiness Kusum Lingpa, a renowned Tibetan lama and enlightened man. This is one way Streeter elicits perjured and false testimony.
Streeter: Does she refer to you on the first page of that email, Mr. Cohen?
Cohen: Yes, she does.
Streeter: What does she call you, sir?
Cohen: She says, Cohen is an asshole who is going to hell. RT 196
Public Defender: I think the rule of completeness that the statement needs to be -- the whole statement -- the whole sentence needs to be read.
Court: Can you read the whole sentence?
Cohen: After all, as Lamasang said, Cohen is an asshole who is going to hell. RT 197
Defense Closing:
My trial lawyer is correct - Streeter takes statements and words out of context. She mislead the jurors by leaving out the beginning of this message which says I did not fuck Oliver Stone, etc. Leonard Cohen, and his lawyer Robert Kory, went into my younger son’s father’s office - in an attempt to stir up a custody matter - and accused me of having sex with 1) Leonard Cohen; 2) Oliver Stone; and, 3) Leonard Cohen’s tax lawyer. It is preposterous and this should really be addressed in the motion/writ. I do believe I have a right to refute these types of lies and to advise Cohen to cease and desist. This was evidently one of their first lines of defense with respect to the fact that they understood I was reporting Cohen’s tax fraud to the IRS. I think Oliver Stone should be highlighted in this example.
[Sandra Jo Streeter] But I’m going to give you a spoiler. Ms. Streeter, she brought out the worst emails in this testimony. And she just highlighted bad words out of context to try to shock you. Oh, she said something about fucking Oliver Stone. Well, yeah, my client explained that. Mr. Cohen accused her of sleeping with Oliver Stone. She wanted to refute that accusation against her. RT 589 I‘m not going to comment if I think that’s a good use of taxpayer money, but that’s what happened. They printed out these emails over and over to shock you. RT 590 They have a plan to discredit Ms. Lynch. RT 590
What permits the prosecutor to view all my comments as nothing more than unsubstantiated allegations? Has Streeter reviewed the evidence that actually proves Leonard Cohen stole from me; owes me millions; concealed corporate books and records; etc? The child molestation accusation should be addressed in the motion/writ, obviously.
Streeter: The people view virtually all of the comments made by Ms. Lynch as nothing more than unsubstantiated allegations, but, nevertheless, some of the things that Ms. Lynch has said have been incredibly troubling to Mr. Cohen. In particular, for example, the accusation that he’s a child molester, things of that nature. RT 3
This is an absolute lie. I have said that Lorca Cohen, Leonard Cohen’s daughter, publicly stated - at Concordia University in Montreal - that her father molested her. This information was repeated by Freda Guttman (an old friend of Leonard Cohen’s) to Ann Diamond. Ann Diamond actually posted this situation on her blog a number of years ago and Leonard Cohen had me contact my brother-in-law, an attorney in Canada, in an attempt to have the comments removed. He was concerned these comments would show up on the front page of the Montreal Gazette. Therefore, Streeter has lied here. I am not the individual or individuals who have stated that Leonard Cohen molested his daughter and have been very clear about this fact. However, this is not a defamation case so I’m unclear what the prosecutor is doing at this point. Is Streeter quoting from something? It has obviously been taken out of context. Streeter misstates facts and takes things out of context. See below - Allegation of Child Molestation.
I’m not certain if Incoherent and distorted transcripts are prosecutorial misconduct but it certainly seems that way. Material facts appear to be intentionally left out, confused, and the transcripts do not accurately reflect the voice mail messages. Streeter’s arrogant comment about her secretaries really drives home the point that these people could care less about their budget crunch - particularly when they have a celebrity to protect. I repeatedly heard Deputy City Attorneys advise the judges that this case was unusual because it involved a celebrity and believe that shows absolute prejudice and motive on their part. That’s before we get into the Phil Spector aspect of the situation.
INCOHERENT TRANSCRIPTS
Streeter: I have additional transcripts for the jury … RT 33 I mean, you know it’s as accurate as getting my secretaries to do it. RT 34
Streeter: I think I counted wrong. I have 13 transcripts, not 14. RT 62
At the bail hearing (and I have been unable to obtain the transcripts) Leonard Cohen testified that I never stole anything from him but his “peace of mind.” He also testified that we had a purely business relationship and this led to the line of questions re. perjury. I don’t think the judge should have sustained the objection to the perjury question because Leonard Cohen lied repeatedly and one of the main pieces of concealed exculpatory evidence relates to Phil Spector and impeaches his testimony with respect to the gun being held to his head. At this hearing, Streeter lied to the judge and said I was estranged from my sons. I was not and Rutger was extremely devastated by the situation and wanted to testify (after hearing that Cohen took the stand about his accident at Whole Foods). Streeter lied when she told the judge I was a flight risk and dangerous to my community. She lied about the incident with Jonathan Maihart - who is a Persian male, not a Latino gang member, and someone who worked for me in 2005. I have not seen him since. He stopped by Robert Kory’s office to pick up a document. This incident also appears in the LAPD report.
COHEN’S BAIL HEARING TESTIMONY
Leonard Cohen testified at the bail hearing that I never stole anything from him but his “peace of mind.” Streeter concealed this fact from the jurors as well as all corporate books, records, etc.
Kelly: But defense still contends that any mention of stealing, misappropriation, anything regarding Ms. Lynch’s -- I guess conduct while employed by Mr. Cohen at this point is improper character evidence. RT 35
Leonard Cohen and I did not have a brief intimate relationship or a dating relationship. He testified honestly at the bail hearing about this and confirmed this in two follow up questions at that hearing. I suppose this was inconvenient to the prosecutor who works in the Domestic Violence Unit.
Streeter - Opening:
They had a brief intimate relationship, and then at some point after that 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. RT 37
And Mr. Cohen ended the business relationship that he had with Ms. Lynch. RT 38 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. RT 38
But you want know what else the evidence is going to show? Ms. Lynch came to that hearing [2008] where the court issued the permanent restraining order. RT 39 The evidence will show, no more than the ink was barely dry on the restraining order in Colorado, Ms. Lynch was at it again. RT 40
The prosecutor has knowledge of my complaint to the DA’s Major Fraud Unit. The prosecutor has a duty to provide the defense with information as to why the DA chose not to file criminal charges against Leonard Cohen. See Motion filed in Barry Bonds matter that addresses a possible government quid pro quo with respect to to a key prosecution witness. In 2006, I filed a complaint with the DA’s Major Fraud Unit. I found this complaint online. It relates to fraud, etc. I then spoke to Jeff Jonas of the DA’s office and, ultimately, the DA’s office became hostile and began threatening me. Clearly, their conduct related to the fact that I filed a complaint against Leonard Cohen. I also wrote a letter to Deputy DA Alan Jackson (Phil Spector’s prosecutor) about certain issues I was dealing with re. their office and individuals who have targeted me relentlessly since approximately 2009 - that would include Stephen Gianelli. The evidence cannot show that I fought with the DA because I have never spoken with DA Steve Cooley. I have, however, been threatened by his investigator (Marko) and was threatened with arrest for asking them to return a letter their investigator took from me that Phil Spector faxed me. The investigator agreed to photocopy and return that letter and, to date, they have not done so. The DA’s office has engaged in outrageous governmental conduct with me and that includes Cooley’s attempt to obtain a restraining order against me. In other words, the DA’s office has also tried to silence me. They can now attempt to silence David Mamet, Al Pacino, Helen Mirren, and others. The evidence actually shows that the DA’s investigator rolled by my house in 2005 after an anonymous tip was placed to their office (presumably by a woman and I might note that they have caller ID) about my friendship with Phil Spector. During the so-called sentencing phase, Captain Jack Horvath wrote to the court and lied. He said 1) I had threatened Cooley but did not acknowledge that I had sent around a satirical email that noted I was running for President, on the Wedding Party, and my top criminal priority would be cleaning up corruption in politics. Furthermore, the California Penal Code clearly states that any official who willfully uses perjury to obtain a conviction - and the subject is then sentenced to death, is subject to the death penalty. I think Phil Spector has effectively received a death penalty. At this moment in time, Steve Cooley was running around demanding executions. The ACLU weighed in on that matter and I was working on an ACLU campaign. Cooley actually wanted people executed using a drug that is used to kill animals. My friends and I - working on this campaign - would play a game where we would run for President and appoint our cabinets, etc. I appointed an FBI and CIA director. Captain Jack Horvath evidently believes I am the President of the United States and my mother is the Deputy Director of the FBI. Horvath lied to the court and advised the court that I contacted the DA’s office in 2007. That is a bald faced lie. The DA’s investigator came to my house - unannounced - in 2005; I filed my complaint re. Leonard Cohen with their Major Fraud Unit in 2006; and, in 2007, I met with Investigator John Thompson and Detective Silva and was advised that I was probably a witness in the Phil Spector trial. This situation led to absolutely deranged conduct on the part of the DA’s office with respect to me and I ultimately advised them - after speaking with an attorney in Colorado - that I would take the 5th amendment if they attempted to call me as a witness due to their outrageous and unconscionable conduct with respect to me. During my trial, the DA’s investigator was present in the courtroom while Leonard Cohen testified - repeatedly - about Phil Spector and ultimately about one version of his highly embellished Phil Spector gun story. An email -that was not sent to Leonard Cohen or his lawyers - was entered into evidence. Cohen testified that he received that email. The prosecutor elicited testimony about that email. The email was sent to Dennis Riordan (Phil Spector’s appellate attorney) and it essentially stated that Leonard Cohen has told me - for 20 years - that Phil Spector never held a gun on him. Cohen told me, after meeting with detectives from the Sheriff’s Department, that he advised them that Phil Spector never held a gun on him and he advised them that his stories about Phil Spector were good rock and roll stories. I was absolutely shocked when one of my trial lawyers showed me Cohen’s email to Streeter re. Phil Spector which, as I have said, has been concealed.
http://docs.justia.com/cases/federal/district-courts/california/candce/3:2007cr00732/197741/190/
The evidence will show that Ms. Lynch was upset and Mr. Cohen and fought with the District Attorney, the LA County District Attorney’s didn’t file charges against Mr. Cohen. RT 40
Francisco, one interesting point. For years, I have filed complaints with LAPD re. Leonard Cohen’s ongoing harassment of me; Stephen Gianelli’s targeting of me and my children (who both lived in LA at the time - including my younger son who was a minor); Cohen’s theft from me, etc. I have heard nothing from LAPD and yet LAPD’s Threat Management Unit (a celebrity unit) became involved with the Leonard Cohen situation; visited Leonard Cohen at his lawyer’s office; and their report simply sets forth what Cohen advised them. Ultimately, Detective Viramontes/LAPD advised me that Cohen did not feel comfortable with my requests for tax information. That is an outrageous situation and I absolutely was entrapped by Leonard Cohen - and probably the City Attorney’s office and District Attorney’s office - when the Colorado order was registered in California on May 25, 2011 and I was not served or notified of the order. One must wonder - how did LA Superior Court obtain jurisdiction over me? The City Attorney has argued - in their reply brief - that it is irrelevant if I wasn’t served or notified. That’s preposterous and due process is a fundamental right. Either the City Attorney is lying or they are absolutely incompetent.
Kelley Lynch Direct:
Public Defender: Did you ever contact any authorities regarding Mr. Cohen? Any law enforcement?
Lynch: Yes, actually. Repeatedly.
PD: And when did you do that?
Lynch: For a number of years. I’ve contacted LAPD for years about Leonard Cohen. I’ve contacted the District Attorney’s office. I’ve filed a complaint with the District Attorney’s Major Fraud Unit. I’ve kept the District Attorney copied in on emails, you know, so that no one can deny later that I have attempted to report these types of tactics that have been used against me. I’ve contacted the Federal Bureau of Investigation about it. I’ve contacted Agent sopko, who is Intelligence with the Treasury, with the IRS. RT 476
Streeter’s correct. This case is not about whether or not I stole or misappropriated anything about Leonard Cohen. It is an all out attempt to discredit me, sabotage the IRS and my future litigation matters, and appears to involved illegal discovery about Phil Spector. Streeter’s very clear in her closing argument - it weighs on my credibility. Actually, I think Streeter’s misconduct, lies, concealment of evidence, and ongoing attempts to elicit perjury really weighs heavily on her credibility and have advised the IRS that I believe she should be investigated and prosecuted. I assume this is one of the reasons she decided to lie to LAPD about me - after the appeal was filed which is absolute retaliation on her part. Sandra Jo Streeter is a liar; she is absolutely aggressive; she met a celebrity; and I personally believe she should be disbarred and jailed for her conduct. Of course, no one holds prosecutors accountable for their misconduct so that is my idealized version of the justice system. The evidence - corporate books, records, etc. - proves that Cohen has stolen from me, concealed facts and evidence from LA Superior Court in his retaliatory lawsuit against me, and has taken the position that he is the alter ego who engaged in self-dealing with respect to the corporate entities that LA Superior Court wrongfully conveyed to Leonard Cohen - based on perjury in his declaration. These corporate entities were NOT held in trust for Leonard Cohen and there is not trust document. There is a deranged fictional narrative. Leonard Cohen heard I reported his tax fraud to Agent Bill Betzer/IRS (and others) on April 15, 2005 and retaliated.
Streeter Closing:
The case is not about -- about the unlawful -- whether or not Ms. Lynch was ever charged criminally with stealing from Mr. Cohen, although it does weigh a bit on her credibility issue. All right. RT 562
Streeter Opening:
Michelle Rice, Leonard Cohen’s lawyer who has made her career targeting me, wrote me an email on February 14, 2011 LYING to me when she advised me that the Boulder civil harassment order that I requested was registered in California. I then phoned LA Superior Court and determined that this was a bald faced lie. Boulder Municipal Court Clerk’s office advised me that the Colorado order expired in 2010 and there are many varied definitions of permanent - which can include an order that expired in two to three years. How can a California court enforce an order when they have no jurisdiction? Rice’s lies about this letter were utterly pathetic. The Colorado order does NOT mention Robert Kory or Michelle Rice. That is a bald-faced lie on the part of prosecutor Sandra Jo Streeter. I have no idea why my trial lawyers didn’t object to her misconduct or file a motion regarding the misconduct. Maybe they were just lazy. Who knows. They never bothered to meet with me and the bailiff pointed this out repeatedly. They had facts wrong; Mike Kelly lied to me repeatedly; and - to date - they refuse to hand over my file which I believe has harmed me with respect to this insane appeal.
But the evidence will show Ms. Rice has a job to do to protect her client’s interest, share a letter in February 2011 reminding Ms. Cohen [sic] that there is a permanent Colorado restraining order. And that the California courts will enforce that restraining order. RT 41
Let’s talk again about that Colorado restraining order … It says “Do not contact Mr. Cohen’s attorneys, Michelle Rice and Robert Kory.” That’s what it says. RT 41
Michelle Rice Direct:
Public Defender: Let me know where it shows that Mr. Kory is a named person …
Rice: Well, he’s not named … RT 359
PD: And isn’t it also true that your law office’s address is only included under places of exclusion; isn’t that correct?
Rice: That is correct.
PD: Your name or Mr. Kory’s name, does it appear anywhere in that restraining order? … On the order itself, if your name or Mr. Kory’s name on there as a person that Ms. Lynch is prohibited from contacting? RT 359
Rice: Not specifically … RT 360
Streeter Opening:
Leonard Cohen has breached many agreements with me - oral, written, implied, explicit, you name it. I own 15% of all his intellectual property. The non-revocable assignments date back to 1967. They were assigned to Blue Mist Touring Company, Inc. Leonard Cohen advised LA Superior Court that this entity was held in trust for him. That is a bald-faced lie and absurd. I also own 99.5% of Traditional Holdings, LLC which is basically worth the value of the private annuity - $4.7 million. I do not want a penny of that but want to address - ultimately - the fact that I legally own this. Why? Because Leonard Cohen needed assistance with his tax and estate planning, used me horrendously, and then decided to defraud me. He has also withheld commissions, worth millions, from me which were addressed at my trial. This man is a thief. He is a fraud. He has done this to his prior manager/attorney. He lies about Phil Spector. And he lied extensively throughout this trial - including with respect to the IRS and his fraudulent refund. This man, who has an outrageous sense of entitlement, feels absolutely comfortable lying and perjuring himself in every court he rolls into. That’s why he gave Judge Robert Vanderet a glowing review - he understood that the man wouldn’t even hold him accountable for confessing, on the stand, to perjuring himself. What more could another Hollywood fraud want?
I suppose I do talk about tax fraud a lot. I have, after all, been documenting - in emails - the destruction of my life (and everything I’ve gone through since reporting Cohen’s criminal tax fraud to the IRS) for the IRS, FBI, DOJ, Treasury, FTB, Phil Spector’s attorneys, and the news media. This is clearly what concerned Leonard Cohen. Streeter raised the fact that I was posting online. She evidently thinks she has the right to silence me. This woman was gushing in her cell phone about celebrity Leonard Cohen and his calm demeanor; skipping out of the court room to advise Cohen that the LA Times would take one still photograph; lying through her teeth; breaking items - like the podium; and generally conducting herself as the moronic lunatic that she is. She is hugely overweight and rolled into court - first day of trial - wrapped in a skin tight spandex outfit that highlighed her rolls of fat. I have never seen a more unprofessional individual in my life but, then again, I haven’t spent that much time with LA Confidential up close and personal. They make the individuals who work in the entertainment industry look like saints and brain surgeons. Leonard Cohen is required, by the IRS, to provide me with Form 1099 for the year 2004. He has steadfastly refused to do so and testified that he knows what a 1099 is. His lawyer, Rice, lied when she testified that she is not permitted to provide me with tax documents. She obviously feels entitled to email me and lie to me and, I might add, the IRS, FBI, Treasury, Dennis Riordan, Ron Burkle and others - including, I believe, Alan Jackson. The only ruse here is the trial which is a Stalinesque Show Trial and a circus brought to you, using taxpayer dollars, by Leonard Cohen, the City Attorney, and the District Attorney. Leonard Cohen does not want to provide me with a 1099 because he has lied about my receiving overpayments with respect to my personal management commissions. The illegal K-1s his 100% owned entity transmitted to the State of Kentucky and IRS completely undermine the fraudulent expense ledger. The K-1s, from LC Investments, LLC, for the years 2003, 2004, and 2005 state that I received $0 income from this entity and yet income is alleged on the fraudulent expense ledger which in no way resembles an accounting and does not take into consideration corporate ownership interests, assets, liabilities, or equity. Leonard Cohen’s loans and personal transaction fees (totalling nearly $3 million) are not addressed and yet he testified that he used corporate assets to purchase things such as homes for his girlfriend and son. In any event, Detective Viramontes/LAPD has been clear with me - the IRS must obtain the 1099 I need from Leonard Cohen. At that point, we will see what he considers income. One thing he doesn’t consider income - the income he received from the sale of certain assets to Sony Music in 2001. His disdain for ordinary income taxes is unparalleled. Sandra Jo Streeter repeatedly lied to the jurors when she stated that I have the tax documents I require. That would include a proper accounting, taking into consideration the corporate ownership interests, assets, liabilities, and equity. Streeter concealed the fact that Leonard Cohen (as the sole owner of LC Investments, LLC) has provided me with illegal K-1s for the years 2003, 2004, and 2005 and refuses to rescind them. Robert Kory testified that I asked that they withdraw these K-1s. Leonard Cohen’s declaration (part of the IRS binder in Streeter’s possession) clearly notes - he is the 100% owner of this entity. Streeter concealed this evidence of criminal conduct on Cohen’s part from the jurors. Streeter lies when she says that Cohen doesn’t have the information I required. Of course he does. All employers are required, by the IRS, to provide a 1099 or similar tax document to their employees and there are penalties for failing to do so. The ruse here - the entire trial. Leonard Cohen testified that he knows what a K-1 and 1099 are. Streeter simply lies and this is a classic example of how she does that. My trial lawyer advised me that judges don’t know she lies. I suppose that’s because she baby talks to them. It’s nauseating and obscene.
In some of these 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 … Indeed the most important thing that she mentions every so often the tax statement is merely a ruse. RT 42
The evidence you will see from December 18 … emails by Ms. Lynch to Mr. Cohen, exactly one of all those emails that Ms. Lynch specifically asked for her K-1 form it is. RT 42
I have not asked for a W-2 and could care less what Cohen knows. As an employer, who has many professionals working for him, he is required to understand IRS reporting and filing requirements. He has a clue about these forms but testified that he couldn’t teach it. The man is pathetic. Leonard Cohen has this information. He simply does not want to hand it over. It creates further complications for him with respect to his tax fraud.
Let’s talk about Ms. Lynch’s need for the tax form or tax return -- The evidence will show that Ms. 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 43
Leonard Cohen and I never had a brief intimate relationship or dating relationship. Please address the perjury in the motion/writ. This man lies as easily as he breaths.
Leonard Cohen Direct
Streeter: And did you ever have an intimate relationship with her?
Cohen: Yes I had a brief intimate relationship with her. RT 49/50
Streeter: Let’s stick with when you first ended the relationship. That one year period about when you ended the relationship, on average how often would Ms. Lynch call you at home?
Cohen: I’m not sure. There have been so many phone calls over the last six years that it’s hard to determine exactly when the longer -- when he more abundant periods were. RT 52
I don’t think my requests for tax, accounting, and financial information; demands to cease and desist; etc. have to be requests for conversations but this is a perfect example of one of Leonard Cohen’s carefully crafted garbage statements.
Streeter: How come you stopped talking to her on the telephone?
Cohen: Well, they weren’t really invitations of conversation. RT 53
Leonard Cohen is essentially the author of the default judgment that was procured via fraud, perjury, lies, and concealment. The retaliatory lawsuit was clearly an attempt obstruct justice due to the fact that I reported his tax fraud to the IRS.
With respect to these corporate entities, Francisco - this is what my former lawyers think Cohen and his representatives created:
Blue Mist Touring Company, Inc. owns the intellectual property (assignments dating back to 1967 are non-revocable)
LC Investments, LLC (Cohen personally and other entities) collect the income
Traditional Holdings, LLC sold IP assets to Sony in 2001 that it did not own.
The intention, according to Robert Kory, was to roll Traditional Holdings, LLC into LC Investments, LLC. I asked for, and was provided, an indemnity agreement when asked to assist Leonard Cohen with this creative planning. It did not sound appropriate to me. This indemnity agreement has also been concealed.
The steps on the tax returns re. Traditional Holdings, LLC are as follows:
2001 - Leonard Cohen did not report the sale of IP to Sony Music. He has said that this deal was $8 million. In 1999 he personally received the $1 million income advance from Sony. He never transferred this to TH and this is where he begins his ongoing attempt to prove that he is the alter-ego of this entity who engaged in self-dealing. The deal was ultimately worth $6.3 million because live albums were required to be delivered and they were not delivered as of the date the deal closed in 2001. With respect to Leonard Cohen’s personal transaction fees and the purchase of homes for his girlfriend and son (using corporate assets), his loans from TH come to approximately $4 million. He has many other loans from this entity and there are also corporate distributions, etc. However, this is a sham entity and fraudulent transaction and, therefore, Traditional Holdings, LLC issued Leonard Cohen a 1099 for wasting the entire $8 million. I believe he has delivered at least one of the live albums required to complete the deal. Deducted from the sales price, also concealed, were amounts Leonard Cohen needed to recoup re. his record contract with Sony. Therefore, those monies really went directly to Leonard Cohen and were beneficial only to him. I think they totalled something in the vicinity of $500,000.
2002 - My promissory note, which was the instrument with which I allegedly “invested” in Traditional Holdings, LLC was extinguished from the 2002 return. Cohen’s tax lawyer, Richard Westin, prepared these returns. When he and Cohen met with my former lawyers they asked hm: Why didn’t you set the annuity up legally? Westin’s response - this is how they do things in Kentucky. He also advised me, and the State of Kentucky advised me otherwise, that LLCs in Kentucky do not have to file state tax returns. They were extremely concerned about state tax returns and the Franchise Tax return. In fact, this seemed to freak Cohen’s tax lawyer out in the summer of 2004 when things become psychotic with Cohen, Greenberg (Cohen’s financial adviser who helped create this tax planning and the corporate structures, etc.). At that point, Westin advised me that Greenberg would screw me over and he would stand up for me. In the fall of 2004, Cohen and I received a letter from Westin (who was preparing tax returns and had the corporate books and records in his possession) advising us that the IRS could overturn the structure of TH if they noticed a disregard for form or substance, etc. That’s when I decided that I had the evidence I needed to report Leonard Cohen’s tax fraud to the IRS. I had been gathering evidence since the moment an Ogden, Utah IRS agent issued a document request and found Cohen’s tax lawyer evasive. Leonard Cohen, in his retaliatory lawsuit, stated that I refused to hand over corporate records. The only corporate records I had were the corporate books for Blue Mist Touring Company, Inc., LC Investments, LLC, and Traditional Holdings, LLC. These were transmitted to Greenberg, Glusker in 2004 (they briefly represented Cohen) by my lawyers. I wanted them formally transferred and documented with a transmittal letter. My promissory note created huge problems in 2002 when I asked how I would begin paying the payments. Corporate distributions were to be released to me so that I could pay this. I began to feel as though I was in a cicular tax situation where I had no idea how monies could be distributed to me and I personally would not be required to pay taxes on them. Cohen’s lawyer assured me that this was not an issue and said he would ultimately recharacterize the nature of these distributions. Apparently he has with respect to the $500,000 mentioned in Cohen’s lawsuit. There was never a $500,000 payment to the IRS for the $1 million income advance Cohen personally received from Sony in 1999 which was the subject of an IRS audit. He prevailed in that audit and did not pay $500,000 in taxes at that time.
2003 - Cohen’s tax lawyer extinguishes the private annuity obligation itself. Robert Kory, and my lawyers, advised me that this created a gift to me of $4. 7 million. I don’t view being used horrendously to evade income taxes as a gift but if it’s a gift, Leonard Cohen should pay the gift taxes. That’s precisely the legal advice I was given a well. Leonard Cohen doesn’t want to address Traditional Holdings corporate distributions in a 1099. That is very clear. I view all of this as a very complex step transaction that involves at least three corporate entities and absolute fraud on tax returns prepared by Leonard Cohen’s advisers. Cohen testified that I handled IRS filings. That’s a bald-faced lie. I might have mailed certain documents but he hired professionals to handle all of this.. His testimony was and remains pathetic. Leonard Cohen’s version of events has fashioned him as a victim. Leonard Cohen is no one’s victim. Ask yourself this - why can’t Canada’s National Treasure live in Canada? Why did he abandon a green card in 1988 and reobtain one a few years later? I think the answers are obvious. Sandra Jo Streeter really likes Cohen’s carefully crafted garbage statements. I was very clear - the default judgment was based on fraud, perjury, concealment, and lies. I was not served the complaint and the proof of service re. the complaint is perjured. I did not have a female co-habitant. The default judgment was not served on me and I was not notified when it was entered against me in May 2006. I was homeless. Furthermore, the news media published articles that the default had been entered against me in March 2006. I was homeless at that point as well.
Streeter: When you say “author of her misfortune,” did she elaborate what her misfortune was?
Cohen: … At a certain point, especially after the default judgment, she began to be very clear that I had finger counted some kind of fraudulent action against her … RT 53