INTRODUCTION
Appellant Kelley Lynch was arrested on March 1, 2012. Her trial ended in a conviction ...
The prosecution’s theory of the legal issues in the case, stated during trial proceedings and announced in opening and closing statements at appellant Kelley Lynch’s trial, was straightforward: “One, whether or not there was a valid and lawfully issued restraining order and whether over approximately a 14-month period on several occasions Ms. Lynch violated that validly and lawful issued restraining order. Two, whether or not over a one-year period Ms. Lynch either via email or phone calls made annoying and harassing phone calls that included obscene language or threats for no good reason, not in good faith.” (RT 562)
Prosecutor Streeter thus informed the the jury in opening statements: “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 (RT 37) 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. (RT 38) 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. (RT 38)
Ms. Rice, one of Mr. Cohen’s attorneys, decided to send out a letter, okay? Perhaps it might have appeared a bit forceful. 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’s a permanent Colorado restraining order. And that the California courts will enforce that restraining order. (RT 40-41)
Write a brief summary of the February 14, 2011 email thread, point out that Rice lied, and my comments about the restraining order having expired, pro per legal issues, etc.
http://www.scribd.com/doc/57415308/Kelley-Lynch-s-Conversation-With-Steven-Machat-Leonard-Cohen-and-Phil-Spector
http://www.scribd.com/doc/111041974/California-Registration-of-Leonard-Cohen-s-Restraining-Order-Against-Kelley-Lynch-Filed-May-2-2011
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 9is, 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 Testimony: Q: Now, there is a mention of the K-1. The people ask you about some other documents. Do you know what a W-2 is? A: W-2? No, I don’t. Q: How about a 1099? A: A 1099, yes, is issued by an employer to an employee. Pages 83-84:
Page 280: Q: Okay. Now, do you know what a K-1 is now? A: I have a perfect -- a sense of what it is, but I wouldn’t be able to teach it. Q: Okay. And is it fair to say that you’ve gotten emails through the years referencing a K-1. A: That’s correct.
The defense’s theory of the case, stated during trial proceedings and announced in opening and closing statements at appellant Kelley Lynch’s trial, was equally straightforward: As Ms. Streeter mentioned, the relationship between Mr. Leonard Cohen and Ms. Kelley Lynch, it’s a long history. They started working together in 1988. (RT 44) Like Ms. Streeter mentioned, there were questions about the IRS and taxes. And so he panicked. (RT 45)
The plan was to get Ms. Lynch to work with Mr. Cohen and to pin the blame on his financial consultant. But Ms. Lynch refused to go along with that plan. 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. (RT 45) They said, 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 process. As Ms. Streeter mentioned, these are his attorneys. They have one job and one job only. To protect their client at all costs. That’s what the evidence is going to show happened here. (RT 45) Because if they ruin her credibility, well, that helps Mr. Cohen. And they have done everything in their power to hurt Ms. Lynch’s credibility. (RT 45) And yet they wanted to go and they went and tried to hurt her economically and to put a restraining order on her so they couldn’t have any contact during the litigation. That was their intent. That was their purpose. (RT 46) You’re going to see that a lot of this is asking for legitimate purposes to get legitimate information that she needed for her taxes, information that his attorneys did not want to give to her. (RT 46)
Ms. Lynch is presumed innocent. That means every single time she takes that chair she is presumed innocent. And it’s the burden of the prosecution -- Streeter: Objection; argumentative. Court: Overruled. (RT 47) You find out it’s their burden to prove her guilt beyond a reasonable doubt. That’s what their job is. And unless they can meet that job, you must go with that presumption. Streeter: Objection; argumentative. Court: This is argument. (RT 47)
He’s a celebrity. He’s a performer. He’s an entertainer. That means - that means he’s charismatic. He knows how to get people on his side. (RT 47) Because it’s their burden to prove every single element beyond a reasonable doubt. (RT 47)
The evidence will show that Ms. Lynch ... fought with the District Attorney’s to file charges against him. Was upset with the District Attorney, the L.A. County District Attorney’s didn’t file charges against Mr. Cohen. (RT 40)
When Mr. Cohen went on tour in 2010. No emails. No voice mails ... in 2011, when the emails and voice mails and onslaught started again, the evidence will show. Ms. Rice, one of Mr. Cohen’s attorneys, decided to send out a letter, okay? Perhaps it might have appeared a bit forceful. (RT 40) ... 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)
My wages were garnished this past September, 2011, by the state. And they want my 2004 and 2005 tax returns, which is what I have been fearing. As does the IRS now. And what I am saying is that I said that I was confused about how to file my tax returns. (RT 457)
Let’s talk again about that Colorado restraining order that the evidence will show ... it’s not just that the Colorado court said ... it says, “Do not contact Mr. Cohen’s attorneys, Michelle Rice and Robert Kory.” That’s what it says. And she said okay. (RT 41)
Insert actual language from retraining order - also Kory’s address.
Okay, so once the letter was sent ... emails again to Steve Cooley, the FBI, Sopko. (RT 42)
Streeter is aware that the FBI and Agent Sopko/Treasury have been copied in on my emails ….
GET QUOTE FROM BAIL HEARING:
"I'm not accusing her of theft," he says of Lynch.
http://www.macleans.ca/article.jsp?content=20050822_110877_110877
The jurors were regaled with testimony admitted on a common design or plan theory to the effect that Lynch allegedly began a campaign to “annoy” Leonard Cohen that involved reporting his tax fraud to the Internal Revenue Service; meeting with agents from the U.S. Treasury; receiving an email from Agent Sopko/Treasury that Kory felt was a “game changer;" misappropriating funds from a corporation from which Cohen borrowed millions of dollars - based on lies that intentionally obfuscated her commissions while concealing other assets and a fraudulent expense ledger; requesting IRS form 1099 - that Cohen is obligated to provide Lynch; asking Cohen to rescind illegal K-1s that were transmitted to the IRS and State of Kentucky for the years 2003, 2004, and 2005; demanding an actual accounting that addressed corporate ownership interests, assets, liabilities, and equity; advising Cohen to cease and desist his ongoing campaign of harassment and slander against her - including his preposterous allegation (evidently one of his first lines of defense when he realized Lynch was intent on reporting his tax fraud to the IRS) that she had sex with Oliver Stone; addressing the fact that she was not served the complaint in his retaliatory lawsuit or the default judgment entered against her in May 2006; attempting to address the State wage garnishment after the FTB agreed to temporarily remove the lien against her salary; filing a Complaint with the District Attorney’s office with respect to Cohen’s theft from her in the millions - and directing them to evidence and witnesses; advising the District Attorney’s office that Leonard Cohen lies about Phil Spector; etc.
Remember what the People said the purpose of the opening statement is to give you an outline, an overview of what the People believe the evidence will show. Thank you very much. (RT 43-44)
Are the people ready to proceed? The Court: Will you call your first witness. Yes. People call Leonard Cohen to the witness stand. (RT 47)
In its closing argument, the prosecution proclaimed that “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) Ms. Lynch was a “con artist.” (RT 577) She expanded upon this argument by falsely stating that “This isn’t about Ms. Lynch being angry that she didn’t get her tax documents. This is Ms. Lynch being angry that Mr. Cohen figured out that she was his mark, that she was taking him to the cleaners before she could get out. That’s why she’s so angry ... And her fingers were just a bit too sticky or a bit too long before she could get her exit strategy before he found out. (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 577-578) This is a classic propensity argument. The admission of the Section 1101(b) Evidence on the highly disputed issue of a “plan” theory, the defective instructions given the jury ... are raised as claims of error in this appeal.
There is a wealth of evidence, much of it intentionally concealed or suppressed, supporting the conclusion that Ms. Lynch did not intend to annoy Leonard Cohen and did not willfully or knowingly violate a restraining order. As Ms. Lynch’s counsel told jurors in his opening statement: There were questions about the IRS and taxes. (RT 45) You’re going to see that a lot of this is asking for legitimate purposes to get information that she needed for her taxes. Information that he did not want her to have. Information that his attorneys did not want to give her. (RT 46)
Given the powerful proof that Ms. Lynch was retaliated against for reporting Cohen’s tax fraud to the IRS, and unconscionable and abusive legal tactics were used against her - including highly abused restraining orders, the prosecution was unwilling to rest its case on the evidence concerning the events that unfolded between Ms. Lynch and Mr. Cohen. Instead, they used classic character assassination and outright lies. Despite the statutory prohibition on character evidence (Evidence Code Section section 1101(a)), the prosecution sought to plug the critical gaps in its case with evidence of whom Ms. Lynch allegedly was -- evidence of her character and propensities. Much of the testimony at appellant’s trial concerned not the charges brought against Ms. Lynch, but those occurring in places as far-flung as New York and at times as distant as the mid-nineteen eighties. Throughout this trial, the court permitted the prosecution to do in its closing argument what it had been barred from doing in its opening statement: to assert that appellant had a common “plan” and scheme with respect to Leonard Cohen and thus should be convicted based on her bad character and evil propensities.
It is a testament to the strength of the exculpatory evidence the prosecution concealed through evidence suppression and the use of false testimony that, after being inundated with an avalanche of “bad character” allegations, the jury decided to convict. This situation was exacerbated by the erroneous jury instruction given by the trial court that failed to accurately provide jurors with the proper elements of the “intent to annoy” charges …
The cumulative prejudicial impact of the trial court’s errors in admitting and instructing on the evidence of uncharged offenses and acts cannot possibly be deemed harmless, particularly given the inflammatory and lurid manner in which the prosecution made use of the material throughout the trial and in closing argument. Furthermore, the prosecutor compounded the prejudicial effect of all of these errors with vituperative attacks on appellant‘s character, that included outright lies to judges and jurors, presenting perjured and false statements, concealing exculpatory evidence, and generally engaged in egregious prosecutorial misconduct that in no way resembled aggressive advocacy.
