PETITIONER WAS DEPRIVED OF A FAIR TRIAL
AND A DEFENSE
THE RIGHT TO COMPULSORY PROCESS
Two
essential rights of the alleged accused at trial are the right to
challenge the evidence brought forward by the state and the right to
affirmatively make a defense. This latter right is the right to
“compulsory process” or the “right to present a defense,” See Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); People v. Hudy, 73 N.Y.2d 40, 538 N.Y.S.2d 197 (1988).
The U.S. Supreme Court's due process jurisprudence was expanded with the 1948 decision in In re Oliver
which revised the breadth of the fundamental fairness doctrine: “A
person's right to reasonable notice of a charge against him, and an
opportunity to be heard in his defense—a right to his day in court—are
basic in our system of jurisprudence; and these rights include, as a
minimum, a right to examine the witnesses against him, to offer
testimony, and to be represented by counsel.”
In Washington v. Texas 388 U.S. 14 (1967), the U.S. Supreme Court’s holding was based on the Due Process Clause, Chief Justice Earl Warren, who wrote the majority opinion, stated that compulsory process was critical to the very ability to "present a defense...[a] defendant's version of the facts". This
broad right was necessary to note as its absence would make the right
to compel witnesses futile. In modern practice, a violation of the
Compulsory Process Clause leads to the reversal of a conviction unless
the original error is "harmless.” This
occurs because the exclusion of defense evidence can "significantly
undermine fundamental elements of the [defendant's] defense.”
The Due Process Clauses of the Fifth, Sixth and Fourteenth Amendments also require compulsory process as an element of due process. State statutes and constitutions are another source of the right to confront witnesses.
In Washington v. Texas, the U.S. Supreme Court reasoned that the Due Process Clause of the Fourteenth Amendment
made the right to compel defense witnesses to testify an essential
component of a defendant's "due process" right to fair proceedings.
The impact of Washington was narrowed by a later case, Taylor v. Illinois (1988) 484 U.S. 400,
in which the Court said that "countervailing public interests", like
the need to move through cases quickly, could be balanced against a
defendant's right to present witnesses. In Taylor,
the Supreme Court upheld a judge's order blocking defense witnesses
from testifying due to the defense attorney's deliberate failure to
disclose evidence to prosecutors earlier in the trial. The defense
attorney's actions resulted in a lengthy delay in the proceedings which
the trial judge felt was unjustified.
In Washington,
the U.S. Supreme Court held: 1. The Compulsory Process Clause of the
Sixth Amendment may, in an appropriate case, be violated by the
imposition of a discovery sanction that entirely excludes the testimony
of a material defense witness. The Clause is not merely a guarantee that
the accused shall have the power to subpoena witnesses, but confers on
the accused the fundamental right to present witnesses in his own
defense. 2. However, the Compulsory Process Clause does not create an
absolute bar to preclusion of the testimony of a defense witness as a
sanction for violating a discovery rule. Although a trial court may not
ignore the fundamental character of the defendant's right to offer the
testimony of witnesses in his favor, the mere invocation of that right
cannot automatically and invariably outweigh countervailing public
interests. If discovery violations are willful and motivated by a desire
to obtain a tactical advantage or to conceal a plan to present
fabricated testimony, it would be entirely appropriate to exclude the
witnesses' testimony regardless of whether other, less drastic sanctions
might be available, adequate, and merited. The U.S. Supreme Court
concluded that “The case fits into the category of willful misconduct
for which the severe sanction of preclusion is justified in order to
protect the integrity of the judicial process.” In the instant matter,
Petitioner’s lawyers did not engage in discovery violations. Rather,
the prosecutor blind-sided her lawyers with a highly material IRS binder
after the beginning of the trial - on April 9, 2012. At that time, her
lawyers were told that Robert Kory (who had met with the prosecutor
approximately two weeks earlier) insisted on testifying and provided the
prosecutor with the binder and documents contained therein.
“More
is at stake than possible prejudice to the prosecution. We are also
concerned with the impact of this kind of conduct on the integrity of
the judicial process itself. The trial judge found that the discovery
violation in this case was both willful and blatant.” Washington v. Texas.
The
Trial Court denied Petitioner’s requests to present two material
witnesses: Agent Luis Tejeda/IRS and her son, Rutger Penick. Both
witnesses could have provided impeachment and other relevant testimony.
The trial court’s decision to deny Petitioner the right to present
testimony by Agent Tejeda/IRS and Rutger Penick denied Petitioner the
right to a fair trial and a defense. Whether or not Petitioner knew
Agent Tejeda’s name, or reported Leonard Cohen’s tax fraud to him in
2007, is irrelevant. Prosecutor Sandra Jo Streeter handed Petitioner’s
lawyers an IRS binder on April 9, 2012 with evidence that Petitioner was
previously unaware of (and did not have an opportunity to actually
review until after her release from jail when the Public Defender’s
Office sent her a handful of documents from her file). Petitioner was
unaware that Leonard Cohen obtained a refund from the IRS in 2005 and
had no idea what his or Robert Kory’s testimony regarding this issue
meant. The Court abused its discretion in refusing to permit both
Rutger Penick and Agent Tejeda/IRS to testify. The IRS refunds listed
below, and addressed in Leonard Cohen and Robert Kory’s testimony, have
now been formally challenged as fraud with the IRS. The only
documentation/evidence of what the IRS or Treasury may or may not be
doing with respect to Leonard Cohen’s tax fraud is Agent Kelly Sopko’s
email below. Agent Sopko wrote and advised Lynch to report Cohen’s tax
fraud to Agent Tejeda/IRS and provide the IRS with evidence. There is
no evidence - whatsoever - that the IRS or FTB are pursuing Petitioner.
They requested her tax returns for the years 2004 and 2005 but
Petitioner owes the IRS and FTB no money and finds the line of
questioning regarding her federal tax returns and all tax matters
alarming.
Excerpt of Information in IRS Binder.
Tab 2
- Letter from Robert Kory to Internal Revenue Service dated December
13, 2005 regarding Tentative Refund Application 1037704856. This letter
- to IRS/Fresno - confirms receipt of Form 6762 regarding the Request
for Missing information to Complete Tentative Refund Application.
Tab 3
- Letter 662C from IRS dated February 3, 2006 confirming Tax Refund for
Leonard Cohen for tax periods December 31, 2001, December 31, 2002, and
December 31, 2003.
This
form confirms that the IRS is processing Cohen’s request for
adjustment, dated December 13, 2005. The IRS encloses copies of the
corrections made to Cohen’s form 1045 (Application for Tentative
Refund). It confirms that Cohen will receive the following refunds -
$557,196.00, $56,725.00, and $50,919.00 within 4 to 6 weeks.
Tab 4
- Letter from Robert Kory to Agent Luis Tejeda/Internal Revenue Service
Fraud Unit Division of the Western United States dated March 9, 2007.
In
response to Agent Sopko’s March 6, 2007 email to me, Robert Kory
contacted Agent Tejeda/IRS and follows up his phone call with a letter.
Agent Sopko’s email reads as follows:
Good afternoon Ms. Lynch,
Per
our meeting last week, I have found a solid IRS contact that will be
better able to assist you. His name is Luis Tejeda, and he is the head
of a fraud group at IRS. I spoke with him today and advised him that I
would be passing on his contact information to you.
office phone and address noted.
He
emphasized that you will need to put something in writing - a summary
of all important details, with as much specificity as you have. (For
example if you have copies of any paperwork involved, or social security
numbers of people involved …) Once you pass the information on to him,
he will review it and proceed accordingly. As standard practice, you
will not get confirmation that your information was received. However,
you may contact Tejeda to follow-up.
I hope that this information is helpful to you. If there is anything else I can assist you with, please be sure to let me know.
Kelly A. Sopko
Special Agent
Treasury IG for Tax Administration (TIGTA)
Special Inquiries & Intelligence Division
Kory
notes, in his letter, that Petitioner had publicly alleged that she was
reporting Cohen to the IRS for tax fraud. While that was a “nuisance,”
the situation had changed. “Ms. Lynch has managed to obtain a return
email from Special Agent Kelly Sopko, the contents of which” Kory read
to Agent Tejeda. Kory goes onto falsely state that Petitioner was using
communications from the Internal Revenue Service to defame Mr. Cohen
and to use the threat of an IRS investigation to attempt to “extort”
resolution of civil claims.
Tab 5 -
Letter from Robert Kory to Agent Luis Tejeda dated March 11, 2007 re.
allegations made by Kelley Lynch against Leonard Cohen. Excerpt: While
I understand that you must be open to Ms. Lynch’s allegations, I would
ask that you take whatever steps might be in your power to limit
communications that she can then use to further “defame” Leonard Cohen.
Excerpt from Respondent’s Reply Brief Appellant
fails to establish the court abused its discretion at bar. Appellant
testified extensively regarding her tax predicament. Cohen acknowledged
appellant’s slight concern regarding her tax issue when he testified
“hidden in the volume of emails there was a requirement for tax
information which defendant already had.” (RT 281) Under these
circumstances, Tejeda’s testimony was cumulative. Further, Tejeda was
not available and ready to testify on the basis the judge did not want
to delay the trial when appellant had known of the witness long before
trial and Tejeda was “quite tangential of the merits of the IRS thing.”
(RT 432)
Leonard
Cohen perjured himself - as did his lawyer, Robert Kory - when they
testified that Petitioner was in receipt of tax information she
requires. Neither Petitioner nor the IRS is in receipt of the IRS
required Form 1099 from Leonard Cohen to Kelley Lynch for the year 2004.
Petitioner has just confirmed this with the IRS. No evidence was
presented supporting the testimony that Petitioner received form 1099.
Agent Tejeda never advised the public defender that he was not
available and not ready to testify. Petitioner was told that Agent
Tejeda was meeting with IRS or DOJ attorneys regarding his testimony the
morning the judge sent the case to the jurors - after refusing to wait
until noon for a confirmation from Agent Tejeda/IRS. Agent Tejeda’s
testimony would not have been cumulative. The prosecutor presented the
defense with an IRS binder that revealed material information that
Petitioner was previously unaware of and had no ability to determine on
her own due to IRS privacy rules. Leonard Cohen and Robert Kory
testified about an IRS refund. Petitioner had no idea what they were
talking about. The prosecutor advised the judge about an IRS holding
with respect to Leonard Cohen’s default judgment. There is no evidence
of that anywhere on the record or in the IRS binder. The IRS binder
also contains documents related to Leonard Cohen’s retaliatory lawsuit
against Petitioner. Agent Luis Tejeda/IRS could easily have testified
that the IRS requires parties to provide tax forms, such as a 1099, to
employees and that there can be steep penalties involved for not doing
so and that K-1s are illegal when an individual is not a partner on an
entity and the issuing party refuses to rescind them. Robert Kory
testified that Petitioner asked that the K-1s be withdrawn. He also
testified fraudulent that the IRS and FTB are pursuing me relentlessly.
It is also entirely possible that Agent Tejeda (head of fraud for the
Western Division of the United States) would have testified that the
actual components of an accounting include corporate ownership
interests, asset valuations, liabilities, and equity as well as
addressing the fact that loans are considered corporate assets given the
fact that the prosecutor misled the jurors when she questioned
Appellant over Traditional Holdings, LLC assets and indicated that the
account had dwindled to approximately $150,000.00. Robert Kory did
indeed see a request for an appropriate accounting re. Petitioner’s
ownership interest in certain corporate entities and confirmed in his
testimony that Petitioner asked that the illegal K-1s be rescinded.
These are not particularly sophisticated tax issues. Robert Kory’s
letters to Agent Tejeda/IRS (in response to Agent Sopko’/s email to
Kelley Lynch) prove absolutely nothing - other than the fact that
Leonard Cohen and his lawyers attempted to come up with a rather shabby
defense for egregious tax fraud.
Robert Kory Cross: All
I know is the -- she writes in her emails and she complains that the
IRS and the FTB are pursuing her relentlessly. So I don’t know the -- I
suspect, but don’t know the substance of why they’re pursuing her. (RT
423) What I saw is a request that we change the forensic accounting.
That we withdraw a K-1. These are fairly sophisticated concepts.
Because she saw that we were reporting, that we had reported to the IRS
that money that Mr. Cohen had paid taxes on he did not receive. And
therefore, Mr. -- when we reported that to the IRS we declared a theft
loss. Mr. Cohen got a tax refund. (RT 426) As I read them I was
reading a formidable, intelligent person with sophisticated tax
knowledge who had the forensic accounting and the K-1s and all the tax
information in her possession, and she was requesting that we somehow
modify what we had reported. (RT 426). Petitioner had no understanding
- whatsoever - that Leonard Cohen reported anything to the IRS or
declared a theft loss six months prior to entering the default judgment
against Lynch and a year prior to the Treasury agents advising me to
report Cohen’s tax fraud to Agent Tejeda/IRS. The IRS recently advised
Petitioner to file form 3949(a) with respect to the illegal K-1s LC
Investments, LLC (Leonard Cohen’s solely owned company) and the
fraudulent refund.
Robert Kory Cross:
Public
Defender: In 2005 a lawsuit was brought against Ms. Lynch where a
default judgment was entered. Are you aware of that lawsuit, Mr. Kory?
Kory: Yes. Q: And can you explain to the jury what a default
judgment is? Streeter: Objection; relevance. Court: Sustained. RT
418
Kory:
I sent him the file on -- this occurred in, I think, if I recall,
March of 2007, and I think -- I think March 23, 2007, I sent Mr. Tejeda
the -- all the documents so that the IRS could look into the entire
matter. RT 423 All I know is the -- she writes in her emails and she
complains that the IRS and the Franchise Tax Board are pursuing her
relentlessly. So I don’t know the -- I suspect, but don’t know the
substance of why they’re pursuing her. RT 423 What I saw is a request
that we change the forensic accounting. That we withdraw a K-1. RT 426
Because she saw that we were reporting, that we had reported to the
Internal Revenue Service that money that Mr. Cohen had paid taxes on he
did not receive. And therefore, Mr. -- when we reported that to the IRS
we declared a theft loss. Mr. Cohen got a tax refund. RT 426 I was
reading a formidable intelligent person with sophisticated tax knowledge
who had the forensic accounting and the K-1s and all the tax
information in her possession, and she was requesting that we somehow
modify what we had reported. RT 426 Showing knowledge of the forensic
accounting, the implications of the forensic accounting, and the
problems because we reported it all to the IRS. It’s a Zero Sum Game.
If somebody gets a tax refund, somebody else has to pay taxes. RT 427
Public Defender: But at some point in some of the emails she wrote to
Mr. Cohen which you were copied on, she requested tax information ...
Kory: I -- I suppose - you know, I’d have to look at specific emails,
but I always recall that those requests to him, as what I thought were
part of a ruse. RT 427 I directly gave documents -- I gave all the
documents required for her tax information when she was fully
represented in January -- January, February, March, April 2005. By then
we had completed our forensic accounting, all the information was given
to her. RT 428 Public Defender: It says, Änd I am litigating this in
a court of law.” Do you remember hearing that on the voice mail? Kory:
Yes. RT 430
It
is now the year 2013. The IRS recently advised Petitioner that they
are not in possession of a Leonard Cohen 1099 with respect to Petitioner
Kelley Lynch for the year 2004. The IRS also advised Petitioner to
file fraud form 3949(a) with respect to the 2004 and 2005 K-1s that
Leonard Cohen/LC Investments, LLC issued Petitioner as well as with
respect to the fraudulent refund Leonard Cohen obtained. That form has
now been filed with the IRS Commissioner’s Staff in Washington, DC.
April 11, 2012 Sidebar:
Court: What are your plans at this point? Public Defender: Our
plans are we want to find out about Agent Tejeda. The Court: I will
tell you my strong view is I’m not going to delay the trial for Agent
Tejeda. You guys, whether you knew his name or not, you were well aware
of the relationship, if any, and I think it was quite tangential of the
merits of the IRS thing long before the trial, and I’m not going to
delay at this point the trial. Public Defender: What we would ask is
he said he was going to call during the lunch hour and find out if
there’s an answer that we can -- Court: Okay. Well you can let me
know. Public Defender: Your ruling is not that he’s not precluded from
testifying; it’s that you won’t delay the trial. Court: I won’t delay
the trial. I’ll reserve judgment on whether I allow him to testify. RT
432
Casualty/Theft Loss (Federal Law) - Theft Defined. Theft
is the illegal taking of money or property with the intent to deprive
the owner of it. (W. Lafave, Criminal Law section 8.5, at 721 (2d Ed.
1986)). Theft includes, but is not limited to, larceny, embezzlement,
and robbery. (Reg. Section 1.165-8(d)).
Federal Law. In the case of Gerstell (Petitioner) v. Commissioner of Internal Revenue (Respondent)
46 T.C. 161 (Docket No. 4299-64, filed May 4, 1966), the Tax Court
States (at Page 7): “Section 165 of the Internal Revenue Code of 1954
provides for the deduction of losses arising from theft. The term Theft
. . . converting any criminal appropriation of another’s property to
the use of the taker, particularly including theft by swindling, false
pretenses, and any other form of guile.”
Leonard
Cohen, and his advisers, knowingly and designed by false and
fraudulent representation and pretense, defrauded Petitioner of real or
personal property through fraudulent means and representations. Leonard
Cohen willfully concealed corporate books, records, stock certificates,
notarized documents, memoranda, and Petitioner’s Indemnity Agreement,
in his scheme to fraudulently obtain possession of her property and is
guilty of what is ordinarily referred to as theft. It is a false
pretense to misrepresent facts , both oral and written, in a calculated
attempt to deceive in order to obtain property from another without
compensation. Leonard Cohen, in LA Superior Court Case BC339322 simply
filed a declaration (contained in the IRS binder) which states, in
pertinent part:
“I
am the sole owner of ... Leonard Cohen Investments, LLC (LCILLC), a
limited liability company established in 2000 to hold certain of my
intellectual property assets” and “I am also the beneficial owner of
Traditional Holdings, LLC (Traditional Holdings), a limited liability
company formed in 2000 to hold the proceeds of a sale of certain of my
artist royalties to Sony and to provide an annuity income to me for the
remainder of my life.”
Leonard
Cohen filed this lawsuit in August 2005. On the 2003 federal tax
return, Leonard Cohen’s tax lawyer (Richard Westin), had extinguished
the private annuity obligation without the knowledge, awareness, or
approval of Petitioner.
The
attachment to the judgment, Item 6, reads, in pertinent part: “It is
declared that (1) Lynch is not the rightful owner of any assets in
Traditional Holdings, LLC, Blue Mist Touring Company, Inc., or any other
entity related to Cohen; (2) that any interest she has in any legal
entities set up for the benefit of Cohen she holds as trustee for
Cohen’s equitable title; (3) that she must return that which she
improperly took, including but not limited to “loans,” and (4) that
Cohen has no obligations or responsibilities to her.”
Traditional
Holdings, LLC, a Kentucky entity, and Blue Mist Touring Company, Inc.,
a Delaware entity, are not named parties to this lawsuit. The Court
appears to have relied on Leonard Cohen’s declarations rather than the
corporate books and records. Leonard Cohen has taken the position that
he is the alter ego of these entities and has engaged in self-dealing.
Neither of these entities were held in trust for Leonard Cohen and no
trust document exists. There was no oral agreement with respect to a
trust. Petitioner heard through her lawyers, accountant, and Robert
Kory that the plan was to roll Traditional Holdings, LLC into LC
Investments, LLC. She was also advised that Blue Mist Touring Company,
Inc. owns all the IP property (although she is entitled to her ownership
share regardless of where it has been placed); LC Investments, LLC,
Leonard Cohen, and possibly other entities collects the income; and
Traditional Holdings, LLC sold something to Sony it does not own. There
are non-revocable assignments related to Petitioner’s ownership
interest in the intellectual property and Leonard Cohen personally
dictated a portion of the minutes confirming the assignments. Leonard
Cohen claimed, in this lawsuit, that Petitioner was paid monies in
excess of authorized management fees. It was alleged in that complaint
that: “She also controlled the books and records.”
Leonard
Cohen suffered no theft loss and has attempted to convert his tax fraud
into a profitable enterprise. Under IRC §165, an individual may
deduct losses arising from “fire, storm, shipwreck, or other casualty or
from theft.”
The
chronology of events, as set forth in the index of the IRS binder,
prove that 1) Cohen obtained a refund - or confirmation of a refund - on
or around December 13, 2005 or February 3, 2006; 2) Cohen and his
lawyers understood that Petitioner received an email from Agent Sopko of
the Treasury, after meeting with Treasury agents, advising her to
report the allegations re. Leonard Cohen’s criminal tax fraud to Agent
Tejeda/IRS on March 6, 2007. Kory contacted Agent Tejeda/IRS and read
this email to him and confirmed that Petitioner had made the email
available to many individuals via email; Kory followed his call up with a
letter dated March 9, 2007 to Agent Tejeda/IRS confirming that Agent
Sopko’s email was a game changer and acknowledged that there was now
evidence that the IRS was taking Petitioner’s allegations seriously; a
meeting was scheduled for April 19, 2007; 3) Kory faxed Agent Tejeda a
letter dated March 11, 2007 advising Agent Tejeda/IRS to limit
communications with Petitioner that case be used to “defame” Leonard
Cohen. Kory encloses Petitioner’s public emails; 4) Kory fedexes Agent
Tejeda/IRS a letter dated March 23, 2007 containing six documents re. LA
Superior Court Case BC338322- including Complaint dated August 15, 2005
and Default Judgment dated May 15, 2006 and falsely accuses Petitioner
of breach of fiduciary duty, common law fraud, breach of contract,
accounting, conversion, and imposition of constructive trust and
injunctive relief; 5) Robert Kory writes the IRS a letter dated December
20, 2008 with respect to the 1099 Traditional Holdings issued Leonard
Cohen. This 1099 reported the $8 million Traditional Holdings, LLC
income to the IRS and was issued to Leonard Cohen for the total and
absolute waste of assets - all loaned or distributed in accordance with
his and his representatives instructions, knowledge, and awareness.
Kory advises the IRS that Cohen obtained a default judgment against
Lynch with interest and advises them that the 1099 is a violation of
the Colorado restraining order they obtained in 2008. Kory asks that
the IRS disregard the 1099; 1099 to Leonard Cohen and IRS Commissioner’s
Staff for the year 2008 notes that the entity was a shell company with
an extinguished annuity and further advises the IRS that Cohen
personally received $1 million from that sale in 1999 when the deal did
not close until 2001. Requests an IRS Opinion and addresses the LA
Superior Court fraud, the fact that she was defrauded, and is in need of
a proper forensic accounting for Traditional Holdings, LLC, Blue Mist
Touring Company, Inc., and LC Investments, LLC, etc. The 1099 was sent
to Leonard Cohen c/o Kory, 9300 Wilshire, #200, Beverly Hills, CA 90212.
The “property”abandoned - when Cohen’s lawyer extinguished it from the
federal tax return in 2003 without Petitioner’s knowledge or awareness -
is the private annuity itself. There was no fiduciary obligation with
respect to Traditional Holdings and most certain not with respect to
Petitioner’s ownership interest in all of Cohen’s IP dating back to 1967
or LC Investments, LLC as Lynch is not a partner on that entity.
Cohen’s tax lawyer - on his behalf - also failed to report the TH sale
to the IRS in 2001 and extinguished Petitioner’s promissory note re. TH
from the federal tax returns in 2002 - using a separate ID number which
was brought to Lynch’s attention by her lawyers and accountant.
With
respect to to LA Superior Court Case BC338322 Complaint dated August
15, 2005 and Default Judgment dated May 15, 2006, Petitioner was not
served the summons and Complaint. The proof of service is evidence and
fraud and perjury. Petitioner had no female co-occupant - including one
named Jane Doe with two black eyes. Her son, Rutger Penick, who the
Trial Court denied Petitioner the right to call to the stand, could have
testified to that fact. Leonard Cohen and his representatives were
aware that Lynch was not served the summons and complaint. Petitioner
had a conversation with Robert Kory about that matter after she received
evidence that they had wrongfully obtained copies of her bank
statements dating back to 1998 through 2004 or 2005. Petitioner has
advised Leonard Cohen and/or his representatives not to destroy this
evidence and raised issues related to spoliation with them.
April 9, 2012 - Sidebar: Public
Defender Kelly: At the conclusion of the morning, or right before --
or right after the morning break, counsel and I were somewhat discussing
this case after the jury had left, when unbeknownst to us Juror No. 1
had been in the back and had come out. (RT 151) I don’t know what was
heard. We were talking about the case, something -- it was kind of
light-hearted. I think counsel -- IRS Binder: Streeter:
Yes. I had gotten some documents from Mr. Kory and I gave it to
defense counsel. Kelly: And there was -- I don't know if there was a
joke or something about -- something that could -- Streeter: I could
send a messenger. Court: Do you want me to make an inquiry? It seems
like making a big deal out of nothing. Kelly: Right. I just wanted to
-- Court: I appreciate your letting us know, but I don't think any
further inquiry. It doesn't sound like there's any potential --
Streeter: At the point he came out we weren't even talking. Kelly:
Right. We had stopped, but right when he came out. Court: We'll try
to be more careful about making sure all our jurors are out. RT 151/152
April 11, 2012 Sidebar: Public Defender Ramnaney: There is one other issue about scheduling. We received a binder (IRS Binder) from
Ms. Streeter that was provided to her by one of the witnesses that
includes, you know, we believe a highly relevant witness that goes to
Mr. Kory’s anticipated testimony based on what she provided us. He’s an
agent of the IRS and we have subpoenaed him. We received that
information on Monday. We subpoenaed him, he’s received that subpoena,
but pursuant to Federal Regulations he has to clear that before he can
testify with the appropriate authorities. I spoke with the agent this
morning. That request if being considered and evaluated by their
attorneys, and as I said, they’ll give me an answer by this afternoon
regarding whether or not he will be able to testify and as to what he
will testify to. Based on the fact that we received the binder on
Monday, I think me and Mr. Kelly -- The Court: What does his testimony
go to? Ramnaney: We believe it goes directly to the level of a
specific intent element, your Honor. That Ms. Lynch’s communications
were not made with any intent to harass or annoy, and they were made in
good faith. Based on the actions taken by this agent, they fully
corroborate Ms. Lynch’s intent. We also think that on the secondary
corollary matter, they go to the vice motivation of the people’s
witnesses. The Court: Okay. Well, I will consider that after I hear
your information this afternoon. Ramnaney: Okay. RT 384/385.
It
is argued that since Leonard Cohen, on the stand, admitted having
given false testimony in one instance at the trial--he acknowledged that
he had testified dishonestly (or perjured himself) at the March 23rd
hearing re. the dating/intimate relationship (required for a domestic
violence order) -- the trial court should have distrusted other
statements made in his testimony. Furthermore, Cohen testified at the
March 23rd hearing that Petitioner never stole from him - just his
peace of mind. This statement is bolstered by his interview statement
to MacLean’s in the summer of 2005 (in anticipation of his retaliatory
lawsuit) that he was not accusing Petitioner of theft. To make matters
worse, the prosecutor is concealing an email that impeaches Leonard
Cohen’s testimony that Phil Spector held a gun to his head. The
prosecutor provided Petitioner’s lawyers with an email dated April 5,
2012, wherein Leonard Cohen states - unequivocally - that Phil Spector
held a gun to his neck. In statements the prosecution used in the Phil
Spector matter (including their motions which are readily available on
LA Superior Court’s website and elsewhere on the internet), Leonard
Cohen’s version of events involves a gun being held to his chest. This
version of events further differs from Cohen’s testimony at Petitioner’s
trial because he testified that the gun was an automatic while the
version used by the Phil Spector prosecutors involves a semi-automatic.
Additional false testimony involves the IRS required 1099 for the year
2004. The IRS recently confirmed that they do not have a 1099 from
Leonard Cohen for Kelley Lynch re. 2004. Another issue that was the
subject of false testimony and deception on the part of the prosecutor
has to do with illegal K-1s transmitted to the IRS by LC Investments,
LLC (a wholly owned company of Leonard Cohen’s - his declaration is
contained in the IRS binder and proves this fact) - stating that Kelley
Lynch is a partner on this entity. The K-1s are for the year 2004 and
2005, show $0 income, and wholly undermine - as do other issues - the
fraudulent expense ledger that was part of the default judgment and
contained in the IRS binder. (Code Civ. Proc., § 2061, subd. 3; see People v. Kennedy,
21 Cal.App.2d 185, 201 [69 P.2d 224].) Thus the trial court would be
warranted in rejecting as false defendant's statement. Robert Kory
testified that he provided my representatives with all tax documents in
2005. Additionally, with respect to IRS matters (and the IRS binder, as
well as his testimony at trial), Robert Kory testified that Petitioner
read an ad advising her to report Leonard Cohen’s tax fraud to the
Internal Revenue Service. Petitioner was advised by Agent Bill Betzer
of the IRS, on or around April 15, 2005, to bring the allegations of
Leonard Cohen’s tax fraud into the IRS with a lawyer. He shortly
thereafter advised Petitioner to report the tax fraud to the IRS via
their Fraud Hotline. Agent Bill Betzer/IRS was raised in Neal
Greenberg’s lawsuit against Leonard Cohen in the Denver District Court.
Leonard
Cohen and his lawyers repeatedly lied throughout their testimony. This
testimony was material. The jurors were given distrust language that
set forth a principle for evaluating witness credibility. The
instructions allow the jury to disbelieve a witness who deliberately
lies about something significant because experience should teach people
that a deliberate liar cannot be trusted. The prosecutor concealed,
among other things that will be discussed below, the email impeaching
Cohen’s testimony about Phil Spector and his testimony at the March 23rd
hearing that Petitioner stole nothing from him but his “peace of mind.”
That brings us to the newly discovered evidence in the iRS binder.
Leonard Cohen testified that the IRS provided him with a refund and
essentially supported and upheld the default judgment in the unrelated
retaliatory lawsuit. The IRS binder incontrovertibly proves otherwise.
This binder was discussed at sidebars - as was Agent Luis Tejeda of the
Internal Revenue Service who is the only individual raised at this
trial who could have possibly testified about evidence that Petitioner
could never have obtained in any reasonable manner other than breaking
into the IRS and accessing their computer system which seems both
illegally and unreasonable in the extreme. Agent Tejeda/IRS is,
therefore, essentially an expert witness and Petitioner finds it
difficult to believe that she would subpoena Agent Tejeda/IRS if he or
they were in hot pursuit of her as Robert Kory testified and Leonard
Cohen fraudulently alleged in his Victim Impact Statement.
At
the April 4, 2012 hearing, Petitioner advised the judge that she would
like to present witnesses via video-conferencing since she - unlike the
prosecutor and prosecution witnesses - was disadvantaged in terms of
presenting a defense due to financial inequities. The judge denied this
request further depriving Petitioner of a fair trial. The witnesses
Petitioner intended to subpoena and present (via video-conferencing)
included but were not limited to: the IRS Commissioner’s Staff, Agent
Kelly Sopko/U.S. Treasury, Doug Davis/FTB, David Boies/Boies Schiller,
Greg McBowman, Arthur Indursky, Don Friedman, Stuart Fried, Stuart
Bondell/Sony, Paul Burger (former President Sony Europe), Don Ienner
(former President Columbia Records), Mick Brown (UK Telegraph - Phil
Spector biographer), David Pullman, Ann Diamond, Doron Weinberg, Dennis
Riordan, and Phil Spector who also has confrontation clause issues with
respect to Petitioner’s case.
Videoconferencing
refers to the use of interactive telecommunications technologies for
witness testimony via simultaneous two-way video and audio
transmissions. This technology allows for a witness to testify from a
room adjoining the courtroom via closed-circuit television or from a
distant or undisclosed location through an audio-visual link. In the
courtroom setting, a judge, the defendant, the defence counsel and the
prosecutor can ask questions of the witness and see and hear the
witness’ answers and demeanour in real time transmission. The use of
videoconferencing appears to pose a number of challenges for States.
Firstly, there is the need to become familiar with the technology and
its use in a court setting. In this regard, it is important to note that
technology is rapidly advancing and high-definition images are
sufficiently clear to allow a judge to easily observe all aspects of the
demeanour of a witness. Ordinarily, debate about the legality of
remote testimony centers on its constitutionality under the Sixth
Amendment. The Compulsory Process Clause provides simply that, “In all
criminal prosecutions, the accused shall enjoy the right … to have
compulsory process for obtaining witnesses in his favor….” In Chambers v. Mississippi,
410 U.S. 284 (1973), the Supreme Court held the clause to be sufficient
to override a state prohibition on declarations against interest when
on the facts of the case the evidence was probative and necessary. Chambers
gives rise to a generalized right to present probative evidence for a
criminal defendant. If remote testimony is sufficiently probative and
trustworthy, the defense should have a constitutional right to it in
accordance with one’s right to a fair trial.
In an unusual although not unprecedented act, the U.S. Supreme Court, with Justices
Breyer
and O’Connor dissenting, refused to transmit the proposed rule to
Congress. Instead, Justice Scalia wrote: “As we made clear in Maryland v. Craig,
497 U.S. 836, 850 (1990) - a purpose of the Confrontation Clause is
ordinarily to compel accusers to make their accusations in the
defendant’s presence — which is not equivalent to making them in a room
that contains a television set beaming electrons that portray the
defendant’s image. Virtual confrontation might be sufficient to protect
virtual constitutional rights; I doubt whether it is sufficient to
protect real ones.” Justice Scalia’s argument is deficient and
indicates that he does does not embrace technological advances, the
development of virtual reality and imaging/transmission, while deeply
wedded to traditional tools of the justice system that are outmoded and
ultimately deprives those less fortunate of justice itself. Modern
remote testimony satisfies the Sixth Amendment confrontation clause and
its requirement that denial of such confrontation is necessary to
further an important public policy. It is worth noting that absent
video-conferencing, the testimony of unavailable witnesses in a criminal
case may be had only by deposition or hearsay. Although the Supreme
Court’s decision in Crawford v. Washington,
541 U.S. 36 (2004), prohibits prosecutorial use of “testimonial
hearsay,” it does not ban other forms of hearsay. Presumably, live
cross-examination of a remote witness under oath, complete with demeanor
evidence, would be superior to hearsay.
Petitioner’s
due process and fair trial were were violated when the Trial Court did
not allow Agent Tejeda/IRS, Rutger Penick - and others via
video-conferencing - to testify.
