PETITION FOR WRIT OF HABEAS CORPUS
Our state Constitution guarantees that a person improperly deprived of his or her
liberty has the right to petition for a writ of habeas corpus. California Constitution, Article I; People v. Duvall (1995) 9 Cal.4th 464, 474.
INTRODUCTION
Appellant
Kelley Lynch was arrested on March 1, 2012 for violation of a
California domestic violence restraining order registered on May 25,
2011. 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, 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)
Respondent’s Brief: To
the extent appellant is attacking the statute on its face, her argument
must also be rejected. Citing authorities interpreting “the statute
prohibiting obscene electronic communications made with the intent to
annoy, appellant seems to claim 653m(b) requires certain words be used
to prove a violation. Specifically, appellant defines “obscene,” then
states: “In the instant case, Ms. Lynch did not use any such words that
would violate the statute.” (AOB) However, appellant’s claim is
without merit; no particular words are required to support a conviction
under 653m(b), nor is there any requirement that the communications be
obscene. Appellant may be referring to Penal Code 653m(a) which
prohibits obscene telephonic or electronic communication made with
intent to annoy.
It
seems obvious to Petitioner that the prosecutor was arguing the
elements of 653m(a) after Petitioner was charged with 653m(b). Perhaps
that’s why the AOB addresses particular words required to support a
conviction.
The
defense’s theory of the case, stated during trial proceedings and
announced in opening and closing statements, was equally
straightforward: The relationship between Mr. Leonard Cohen and Ms.
Kelley Lynch, it’s a long history. They started working together in
1988. (RT 44) 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. (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) 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)
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 after they parted ways in October 2004. 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; unconscionable and abusive legal tactics
were used against her attempting to conceal Leonard Cohen’s theft and
criminal tax fraud - including a lawsuit and judgment she wasn’t served
and 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 deception. 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. Throughout
this trial, the court permitted the prosecution to assert that
appellant had a common “plan” and scheme with respect to Leonard Cohen
and thus should be convicted based on her alleged bad character and evil
propensities. That plan and scheme, according to the prosecutor,
included Leonard Cohen’s publicly documented history of drug use and
abuse. It is a testament to the strength of the exculpatory evidence
the prosecution concealed (through evidence suppression, a fictional
narrative, and the use of false testimony) that after being inundated
with an avalanche of “bad character” allegations, the jury decided to
convict.
The
cumulative prejudicial impact of the trial court’s errors in admitting
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, eliciting perjured and false statements, concealing exculpatory
and impeachment evidence, and generally engaged in egregious
prosecutorial misconduct.
STATEMENT OF THE CASE
On
or about January 5, 2012, the People charged Petitioner Kelley Lynch
with having committed violations of Penal Code sections 273.6(a) and
653m(b). The People failed to notify Petitioner of these misdemeanor
charges. She was subsequently arrested in Berkeley, California on March
1, 2012. On March 23, 2012, appellant pled not guilty to all counts.
(Clerk’s Transcript 23). On April 4, 2012, trial commenced.
The
court dismissed Counts Four and Five on April 5, 2012 pursuant to Penal
Code Section 1385. The jury returned verdicts of guilty on all counts
on April 12, 2012 (CT 115). The court sentenced appellant on April 17,
2012. Notice of appeal was filed on May 7, 2012. Appellant’s Opening
Brief was filed December 17, 2012. Respondent’s Brief was filed
February 14, 2013. Appellant filed an Abandonment of Appeal on March 3,
2013 which was denied. Oral arguments are currently scheduled for May
9, 2013. Petitioner is currently restrained by both probation
requirements and unconscionable fees.
STATEMENT OF FACTS
Prosecutor:
In the late 80s when Mr. Cohen’s business manager died ... Mr. Cohen
hired Ms. Lynch.. (RT 37) Lynch: I began working as Mr. Cohen’s
personal manager in April 1988 after Mr. Machat’s death. (RT 448)
Public Defender: Why did it [business relationship] end? Lynch: Well,
it’s a complicated answer, but I would say because Leonard Cohen heard I
was going to the Internal Revenue Service about what I was told is
criminal tax fraud. (RT 458) Around 2005, that’s when things began to
change ... There were questions about the IRS and taxes. And so he
panicked. He got his attorneys involved and the finger pointing
started. 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 the 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) Were you ever asked to give false information that would hurt
Mr. Greenberg and help Mr. Cohen? I don’t know if I would characterize
the conversation that way. I was asked to testify that Neal Greenberg
defrauded Leonard Cohen, and I most certainly do not feel that Neal
Greenberg defrauded him. I feel that Leonard Cohen, Neal Greenberg, and
Richard Westin were wrapped in attorney/client privilege and they all
defrauded the U.S. government. Did you ever agree to any of that? No.
I felt I was being asked to participate in criminal conduct. (RT 460)
Prosecutor:
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)
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)
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 43)
The
evidence proves that Leonard Cohen does indeed know what IRS forms 1099
and K-s are. Regardless of what the prosecutor stated in opening,
Leonard Cohen does not have the information Petitioner has been
requesting. All employers are required to provide their employees with
tax documents at the end of each year - and that would include the City
Attorney of Los Angeles. The information the prosecutor advised the
jurors Cohen did not and does not have would appear on royalty
statements he received, his bank statements, etc.
With
respect to partnership form K-1, Petitioner doesn’t require Leonard
Cohen to provide her with anything - she has repeatedly requested that
Leonard Cohen rescind the illegal K-1s issued to her by LC Investments,
LLC for the years 2003, 2004, and 2005, and transmitted to the State of
Kentucky and IRS. The evidence will not show that Petitioner was
Cohen’s business manager because Petitioner was Leonard Cohen’s personal
manager. This has been well documented, for years, in the news media.
The requests for tax, financial, accounting, and business information
were not a ruse and that would include - but is not limited to -
requesting payment for monies Cohen owes me when my son was injured and
hospitalized. The City Attorney of Los Angeles has a very twisted and
distorted view of what legitimate is and that includes their attempt to
involve my older son on their so-called intent to annoy argument.
Rutger Penick was involved in a horrifying accident that left him
maimed; Leonard Cohen owes Petitioner money; and, Petitioner has a
legitimate right to ask to be paid and/or compensated for work she has
done, corporate ownership interests, and intellectual property she owns.
Leonard Cohen Direct:
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. RT 83/84:
Leonard Cohen Cross-Examination: 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. (RT 280)
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)
Leonard Cohen Cross:
Public Defender: I want to talk to you a little bit about -- you said
that you felt threatened some of these times. Do you remember saying
that? Cohen: I certainly did. Public Defender: Now I want to talk to
you about what you mean by threatened. You actually -- you were
telling us about Phil Spector. You were testifying about talking to the
LAPD. Cohen: Yes, Sir. Public Defender: And you talked to the LAPD
with your attorney, correct? Leonard Cohen: With an attorney present,
Yes, Sir. (RT 308) Public Defender: And how he would oftentimes have
guns when you were producing an album, correct? He would have guns in
the studio when he was producing an album with you? Cohen: That’s
correct. Public Defender: And, in fact, one time you told the
detective that, quote -- well, before I go there, was Mr. Spector -- was
he drunk at the time when he had these guns? (RT 309) Cohen: I don’t
remember, Sir. Public Defender: Was he hostile at the time? Cohen:
Not to me. Public Defender: Okay. But he actually put a gun to your
head; is that correct? Cohen: That’s correct. Public Defender: It
was a revolver? Cohen: No, it wasn’t a revolver. It was an automatic.
Public Defender: But you weren’t actually -- you didn’t feel
threatened when he put a gun to your head? Cohen: No, Sir. (RT 309)
Leonard
Cohen, an individual in this case with bias and motive, did not feel
threatened when a gun was pointed at his head (or neck, if the email he
sent the prosecutor during the trial was the accurate version, or chest,
if you believe the version Phil Spector’s prosecutors used in his
trials - which are readily available in motions on LA Superior Court’s
website) but feels alarmed when he fantasizes about Petitioner possibly
driving down his street. No evidence supports any such incident, In
fact, Leonard Cohen testified that he has not seen Petitioner in
approximately 7 years. Leonard Cohen has a long and very well
documented history of psychiatric ailments, violent emotions, drug abuse
- including prescription and non-prescription meth, alcoholism, and
embellished stories that involve Phil Spector, the Yom Kippur War, the
Bay of Pigs, and Janis Joplin. These are Leonard Cohen’s good rock and
roll stories. These elements of Leonard Cohen’s personality need to be
taken into consideration when reviewing his testimony - as does his
motive: his major tax hit; and, probable criminal tax fraud.
ARGUMENT
To Be Continued ...
ARGUMENT
To Be Continued ...
