PROSECUTORIAL MISCONDUCT
A
criminal trial is not an experimental forum for prosecutors to test the
outer limits of advocacy. "The prosecutor's job isn't just to win, but
to win fairly, staying well within the rules." U.S. v. Kojayan (9th Cir. 1993) 8 F.3d 1315, 1323.
The
spate of revelations of prosecution misconduct in high profile cases
must challenge our belief in social evolution, that is, we believe that
over time individuals and institutions learn from past mistakes, case
commandments, ethical mandates and common sense. Yet, prosecution
misconduct never seems to go away. Indeed, misconduct is part "of an
alarming trend" People v. Pigage (2003) 112 Cal.App.4th 1359, 1374.
Because
of the power and influence on the jury: “[a] prosecutor is held to a
standard higher than that imposed on other attorneys because of the
unique function he or she performs in representing the interests, and in
exercising the sovereign power, of the State.” People v. Hill (1998) 17 Cal.4th 800, 820.
As
addressed above, Petitioner did not steal or misappropriate anything
from Leonard Cohen. Leonard Cohen deceived the court, concealed
corporate ownership interests, non-revocable assignments with respect to
intellectual property, perjured himself, and engaged in fraud, wrongful
conversion, slander, intentional torts, and so forth. The merits of
the case were not argued and the default judgment is evidence of nothing
other than the fact that Petitioner was not apprised of the
proceedings, did not make an appearance, and was not part of that case.
Not only were all statements with respect to any misappropriation or
theft improper character assassination, they were also fraudulent and
false accusations with respect to Petitioner.
Public
Defender: Prior to opening statements -- I know we had addressed this
issue before -- 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
Throughout
this trial, Leonard Cohen testified to the contents of the alleged
emails and writings. He frequently misstated information, distorted
statements, intentionally presented things out of context, and also lied
repeatedly.
Sidebar: Public
Defender: I did want to state on the record I did object numerous
times to best evidence. I do believe that Mr. Cohen has been testifying
to the contents of writings, and pursuant to 1523 he cannot testify to
the contents of writings if -- the best evidence would be the actual
writings. Court: Well, I don’t believe his testimony to date has been
meant as a substitute for the writing and the writing will be coming in.
RT 78 Public Defender; I guess my concern is there is evidence on
the record of threats being made -- via email without -- I think the
jury might take what he says as an actual truth of -- Court: They
might. And they -- he’s testified he’s received threats. Now, if the
evidence doesn’t match up, when you know, if we get copies of the emails
and they are not threats -- then we are free to argue -- that he is not
telling the truth. So we will get to that part of the evidence when we
get there. RT 78
The
sound recordings appear to have been altered in terms of speed, volume,
and sound. Cohen testified that he worked with a sound engineer on
these tapes for which a chain of evidence also appears to be quite
shabby and inconsistent. It is Petitioner’s belief that Leonard Cohen
intentionally distorted the sound to make it appear that Petitioner’s
tone was “menacing.”
Public
Defender: And then the other issue I would just ask that the sound --
the sound is a little bit weak on the playing device. Court; To put it
mildly . RT 78. Public Defender: My concern is the transcript is
supposed to supplement t audio and there is an instruction that the jury
is not to rely on the transcript, rely on what they hear ... if they
can’t hear it, my concern is they’re going to rely on the transcript,
not the audio. Public Defender; As the court can tell, operating a
laptop is not my strong suit. Public Defender; Can you play on a CD
player? Prosecutor: If there is a way to turn it up so it’s louder.
Court: Actually if you go into -- if you go into Judge Barela’s
chambers -- you can go in here; I give you my permission - there are two
speakers connected to the computer that you can just unplug and maybe
we can bring them out now. RT 79
The
prosecutor engaged in egregious misconduct through this trial - during
opening arguments, throughout the trial itself, and in closing as
follows. Petitioner never said she agreed with the prosecution’s
theory. Petitioner did not confirm sending emails. She said that she
would review every single email (against the originals) and testify as
to whether or not she sent the. Petitioner is not a con artist but
Sandra Jo Streeter is a wholly dishonest individual whose misconduct
irreparably harmed Petitioner. She has since the trial attempted to
retaliate against Petitioner (during her appeal process) by lying to
LAPD’s Threat Management Unit; the City Attorney’s office threatened
Petitioner after LA Superior advised her to file formal complaints with
that office regarding the misconduct and deception; and, the prosecutor
has permitted a man criminally harassing Petitioner (since 2009) to copy
her in on many emails to Petitioner, including one with Leonard Cohen’s
lawyer (Michelle Rice) copied in.
Prosecutor Closing: Did
you guys hear it? Did you hear it yesterday from the testimony of Ms.
Lynch? Come on. You heard it. She said as such. She agrees with the
People’s theories of the case, that in a one-year period Ms. Lynch sent
Mr. Cohen a barrage of emails and left him numerous voice mail messages
... and she did it with the intent to annoy and for no purpose. RT 560
This 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. RT 562 How can her
attorneys lie about calls that she made that you heard? How can her
attorneys lie about emails that she sent? RT 563 Con artist. Con
Artist. Con Artist. So 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 ... What
this is proof of is not a woman who legitimately wants her IRS records
or documents. It’s the unravelling of a con. RT 578
Petitioner
legitimately requires her tax documentation and finds it appalling that
the prosecutor would simply lie about federal tax matters and
Petitioner.
A cautionary instruction with respect to the misconduct and/or error would not have been curative. In People v. Valliere
(1899) 127 Cal.65, 66-67, after an interjection of personal knowledge
by the prosecutor, the court said: “the [DA’s] examination was
inexcusable, and the statements contained in the closing address were an
outrage upon justice, which ought not to be allowed to pass. The court
promptly rebuked the attorney, but that did not cure the injury. Rebukes
do not seem to have any effect upon prosecuting officers, and probably
as little upon juries. The only way to secure fair trials is to set
verdicts so procured aside.”
Any forfeiture should be excused due to misconduct by the prosecutor. (E.g., People v. Hernandez
(2003) 30 Cal.4th 835, 871 ["Defendant did not object to the
evidence...or to the prosecutor's argument. But his failure to do so was
excusable, in light of the prosecutor's inaccurate representation to
the trial court that defendant had been convicted of the assault”].)
The Cumulative Error Was a Prejudicial Due Process Violation.
In People v. Hill,
supra, 17 Cal.4th at 845, the court stated "the sheer number of
instances of prosecutorial misconduct and other legal errors raises the
strong possibility that
the
aggregate prejudicial effect of such errors was greater than the sum of
the prejudice of each error standing alone." And "a series of trial
errors, though independently harmless, may in some circumstances rise by
accretion to the level of reversible and prejudicial error." (People v.
Hill, supra, at p. 844.) The "litmus test" for cumulative error "is
whether defendant received due process and a fair trial." People v. Kronemyer (1987) 189 Cal.App.3d 314, 349.) People v. Cuccia (2002) 97 Cal.App.4th 785, 795.
A cumulative due process fair trial was denied and this, together with other errors, prejudiced Petitioner. See Parle v. Runnels
(9th Cir. 2007) 505 F.3d 922. The errors “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.”
Donnelly v. DeChristoforo (1974) 416 U.S. 637, 643. See also People v. Herring (1993) 20 Cal.App.4th 1066, 1075.
Exculpatory & Impeachment Evidence
Brady v. Maryland
(1963) 373 U.S. 83, 87: "the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or punishment, irrespective of
the good faith or bad faith of the prosecution." See In re Brown (1998) 17 Cal.4th 873, 879 (prosecutor is responsible for obtaining discovery and Brady
material in the hands of the investigating agencies.) The elements of
such claims are showing that the evidence was favorable to the accused,
suppressed by the State, and material. Strickler v. Green (1999)
527 U.S. 263, 281-282. “Favorable” does not mean evidence of
innocence. It is a lower standard requiring only a showing of benefit to
the defense. Gantt v. Roe (9th Cir. 2004) 389 F.3d 908, 912.
The
prosecutor failed to divulge the details of the District Attorney’s
decision not to prosecute Leonard Cohen for theft, fraud, and other
issues raised in Lynch’s complaint to their Major Fraud Unit.
Petitioner is unaware of there was some form of quid pro quo with
respect to the DA’s decision, Cohen’s testimony at trial, and the Phil
Spector matter and testimony raised. Petitioner has repeatedly
attempted to discover what motivated the District Attorney and Major
Fraud to willfully ignore her complaint, the evidence she directed them
to, and the witnesses. Petitioner wrote a letter to Alan Jackson
detailing much of this information and that letter was hand delivered to
DA Steve Cooley, DDA Alan Jackson, and DDA Truc Do by Investigator
William Frayeh. Leonard Cohen testified that DA Steve Cooley or those
near to him are probably reading Petitioner’s alleged emails.
Petitioner should have been afforded the right to confront DA Cooley
and DDA Alan Jackson who were used as unsworn witnesses against her with
respect to their decision not to prosecute Leonard Cohen; Leonard
Cohen’s three versions of Phil Spector’s gun stories before LA Superior
Court at this time; with respect to Petitioner’s letter to Alan Jackson
and the issues it raises; with respect to the DA’s decision not to
investigate/prosecute the criminal negligence in her son’s outrageous
Whole Foods incident; and with respect to other matters.
http://riverdeepbook.blogspot.com/2012/10/leonard-cohen-testified-that-cooley-may.html
Crawford v. Washington, 541 U.S. 36 (2004), is a United States Supreme Court decision that elucidated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment.
The Confrontation Clause of the Sixth Amendment (applicable to the
States through the Fourteenth Amendment) provides: "In all criminal
prosecutions, the accused shall enjoy the right… to be confronted with
the witnesses against him."
The
defendant need not even request the evidence. The prosecution has the
duty to produce it. “A rule ... declaring ‘prosecutor may hide,
defendant must seek,’ is not tenable in a system constitutionally bound
to accord defendants due process.... Prosecutors’ ... unwarranted
concealment should attract no judicial approbation.” Banks v. Dretke
(2004) 540 U.S. 668, 696 [a Supreme Court reversal for hiding the status of a key informant witness].
The prosecutor failed to investigate exculpatory evidence. Commonwealth of the Northern Mariana Islands v. Bowie
(9th Cir. 2001) 236 F.3d 1083, n.6 (failure to investigate obvious
evidence of exoneration -- that the prosecution's own witnesses were
conspiring to commit perjury). Three egregious examples of this are 1)
Cohen’s testimony at the March 23, 2012 hearing that Lynch never stole
from him - just his “”peace of mind” (supported by his interview with
MacLean’s in 2005 where he informs the journalist that he is not
accusing Petitioner of “theft”); 2) the fact that Mick Brown/UK
Telegraph raised the issue of Leonard Cohen with respect to the Phil
Spector Grand Jury - not Petitioner; and, 3) the emails between the
prosecutor and Leonard Cohen that contain a different version of Cohen’s
good rock and roll stories with respect to Phil Spector.
Leonard Cohen - Direct: Prosecutor:
What about -- did she ever mention Phil Spector or Phillip in any of
those? Cohen: Yes, she accused me of -- she accused me of testifying
before a secret Grand Jury which resulted in the conviction of Phil
Spector Prosecutor: Do you know Mr. Spector? Cohen: I knew him. He
produced a record of songs that we wrote together. It was in 1977.
(RT 57 ) Cohen: She often mentioned Phil Spector, repeating over and
over that I had testified before a Grand Jury and I was involved in the
conviction of Phil Spector. (RT 61 ) Streeter: Did she ever mention
the District Attorney’s office? Cohen: Yes, she has about 30 emails, I
believe, maybe less, maybe more, where she encourages the reader to
execute -- she has many emails where she encourages whoever is reading
it to execute Steve Cooley. Streeter: Does she make any comment about
a gentleman -- about Alan Jackson? Cohen: And her earlier emails she
wanted Alan Jackson taken down. Streeter: Do you recall if in any of
her emails she compared you to Mr. Cooley or Mr. Jackson? ... Has she
ever compared you with being like Mr. Cooley and Mr. Jackson? Cohen: I
think I was included among those villains. (RT 94/95) Streeter:
After perusing that first page of that document, is there any mention
of Steve Cooley. Cohen: Yes, there is a mention of Steve Cooley.
Streeter: Is there a mention of Alan Jackson? Cohen: Yes, Alan
Jackson is mentioned. Streeter: Is there a mention of you? Cohen:
Yes, I’m mentioned in the same sentence. Streeter: Does she make the
comparison between you and Mr. Cooley and Mr. Jackson? Cohen: She says
we live our lives selfishly pursuing fame at the expense of others.
(RT 96/97)
An
example of an email Cohen alleged to have received and interpreted is
an email that he was not copied in on and there is no evidence
indicating who provided the City Attorney with Petitioner’s April 18,
2011 email to Dennis Riordan, Phil Spector’s appellate attorney, about
Leonard Cohen and his highly embellished Phil Spector gun stories. This
testimony is another example of Leonard Cohen’s dishonesty. The
prosecutor asked Cohen to review the email and confirm that he was a
recipient. Leonard Cohen testified that he received this email but this
was false testimony as he he was not a recipient. The trial court took
the position that this email bolstered the prosecution argument that
Petitioner intended to annoy Leonard Cohen. Speaking honestly in an
email to Dennis Riordan is not an intent to annoy Leonard Cohen. The
email, for obvious reasons, would be materially important to the
District Attorney of Los Angeles and Spector prosecutor Alan Jackson who
did indeed use Leonard Cohen’s statements against Phil Spector.
Leonard Cohen: Direct:
Prosecutor: I’m going to show you an email. (RT 160) Does that
refresh your recollection as to whether or not you received an email on
April 18, 2011 at approximately 8.11 AM in the morning? Cohen: Yes,
this is the email I received ... It says, Cohen told me Phillip never
held a gun on him, and that would support what he told the LAPD. RT 161
Leonard Cohen Cross: Public
Defender: One of these emails that she [Streeter] mentioned was sent
on April 18, 2011 at around 8:.11 am ... Do you remember testifying
about that email? Cohen: Yes, I believe I did. Public Defender:
Okay. And when you testified about that email, you said you remember
receiving that email? Cohen: I think I did. Public Defender: Can you
point out where exactly on the list of recipients that your email
address shows up? Cohen: Perhaps I missed this one. Public Defender:
Okay. But you did testify, though, that you remember receiving the
email, correct? Do you remember testifying to that? Cohen: I believe I
did ... Public Defender: And your email is not on that, correct?
Cohen: That’s correct. (RT 265/266)
Sidebar: Public
Defender: Your Honor, I know I’ve made objections, but a lot of these I
don’t think go to the relevance of he knows about Steve Cooley and Alan
Jackson that don’t reference Mr. Cohen. Court: I don’t want to get
into detail here, but they go to an element in 653m. In fact, several
of them. (RT 209)
Leonard Cohen Cross: Public
Defender: Do you think Steve Cooley was reading all of these emails?
Cohen: I wouldn’t be surprised if he was. Public Defender: Okay.
But you don’t know? Cohen; No, Sir. Public Defender: I believe that
people close to him were. Public Defender: Do you believe that the IRS
was reading every single one of those emails? Streeter: Objection;
relevance. Court: Sustained. (RT 305)
Leonard
Cohen advised Petitioner, for approximately 20 years, that Phil Spector
never held a gun on him and his stories to the news media were merely
good rock and roll stories. He advised Petitioner, after meeting with
LASD detectives, that he confirmed that his stories about Phil Spector
were good rock and roll stories and advised them that Phil Spector never
held a gun on him. At the time, Petitioner believed Leonard Cohen’s
statements to her. Therefore, Petitioner was absolutely shocked when
her public defender, Nikhil Ramnaney, handed her an email that Leonard
Cohen sent prosecutor Sandra Jo Streeter on April 5, 2012 (during the
trial) regarding Phil Spector and an alternate version of his highly
embellished good rock and roll stories about Phil Spector. The
prosecutor concealed that email from the jurors and it most probably
would have impeached Leonard Cohen’s testimony that Phil Spector held a
gun to his head. In other words, the prosecutor either engaged in
concealment or elicited perjured testimony misleading the jurors. She
also failed to inform the jurors that Leonard Cohen had engaged in yet
another probable incident with respect to perjured testimony that has
grossly infected and tainted this trial. The pertinent excerpts of the
emails between prosecutor Sandra Jo Streeter and Leonard Cohen read as
follows.
Leonard Cohen (baldymonk@aol.com)
to Sandra Jo Streeter (email sandrajo.streeter@lacity.org)
cc: Michelle Rice (mrice@koryrice.com)
Thu, April 5, 2012 at 2:20 PM
Hi Mr. Cohen,
I hate to keep peppering you with questions but ... I need to know the following:
7. Do you know Phil Spector? Is so, how? Did you testify in front of the grand jury?
Phil
Spector produced a record of songs we wrote together in 1977. I have
not seen or spoken to him since. I did not testify before a grand jury.
Take care.
Sandra Jo Streeter
Deputy City Attorney
Family Violence Unit
Los Angeles City Attorney
This
email raises a number of questions. For example, it seems to indicate
that prosecutor Streeter has sent prior communications to Leonard Cohen
when she writes: “I hate to keep peppering you with questions.” Those
potential communications were not provided to the defense during the
trial. The above email is Leonard Cohen’s reply to the prosecutor’s
email with questions about his trial testimony. In this email, the
prosecutor asks Leonard Cohen about Phil Spector’s Grand Jury.
Another
email between Prosecutor Sandra Jo Streeter and Leonard Cohen is highly
relevant and absolutely material - as it completely undermines Cohen’s
testimony with respect to Phil Spector holding a gun to his head - reads
as follows:
Leonard Cohen (baldymonk@aol.com)
to Sandra Jo Streeter (email sandrajo.streeter@lacity.org)
cc: Michelle Rice (mrice@koryrice.com)
Thu, April 5, 2012 at 9:31 PM
“Dear Ms. Streeter,
This
is a short note I prepared for a biographer last year. I know you’ve
been burdened with an enormous heap of material, but this rounds off the
answer to question you asked about Phil Spector.
Sincerely,
L
PHIL SPECTOR
Shortly
after the death of Lana Clarkson, I was visited in my home by two
detectives from the Homicide Bureau of the Los Angeles Sheriff’s
Department, Detective Paul Fournier, and Detective Richard Tomlin.
Kelley
Lynch thought it would be a good idea to have a lawyer present, so she
arranged for Attorney Steven M. Cron to be there for the interview.
Mr. Cron asked Kelley Lynch to excuse herself, and she left the room.
Apparently
the detectives had come across some old interviews I did in 1978 or
1979 in which I spoke of the difficulties of recording Death of a Lady’s
Man with Phil Spector: the brandishing of guns, armed bodyguards,
drunkenness, and Phil’s famous megalomania. Even though Phil put his
arm around my shoulder and pressed an automatic into my neck,
except for the real possibility of an accident, I never at any moment
that that Phil meant to do me harm. I never felt seriously threatened.
I conveyed this to the detectives. I said the incident was repeated in
the press over the years, with exaggerations, but it was basically just
a good rock ‘n roll story.
Then
they asked me when I had last seen Phil Spector. I said it’s been over
20 years. They were very surprised. They said they were under the
impression we were close friends. I said no. Hearing this they thanked
me for my time, finished their coffees, and left. It was clear that I
was not to be considered a valuable witness.
I
was never approached again by anyone concerned with the case. Needless
to say, I did not testify before a Grand Jury.” Clearly, this version
of events with respect to Leonard Cohen’s highly embellished gun story
about Phil Spector differs from the version he testified to during this
trial.
As
to the allegations that Leonard Cohen testified before a Grand Jury in
the Phil Spector matter, Mick Brown/UK Telegraph is the individual who -
in 2005 - advised me that he had reviewed the Grand Jury Testimony and
confirmed that it contained testimony by Leonard Cohen. Testimony is
used with respect to statements in the UK and Mick Brown, during and
since Petitioner’s trial, has clarified this matter with Kelley Lynch.
On 10 April 2012 09:41, Mick Brown <mick.brown@telegraph.co.uk> wrote:
Dear Nikhil Ramnaney,
Thank
you for your letter. I'm afraid there has been a misunderstanding here.
At the time I was writing my book about Phil Spector I was sent copies
of material that, as I understood it, had been submitted to the Grand
Jury in the Phil Spector case. Included in this material were (short)
statements from Leonard Cohen. I might well have mentioned to Ms Lynch
that these statements were included in materials presented to the Grand
Jury. However, I do not recall having stated that Mr Cohen himself had
testified to the Grand Jury. Indeed, I
would have had no way or knowing whether he had or not.
My
feeling is that these statements had not been given by Mr Cohen
personally at the time, but were actually taken from one or more
interviews that he had given in the past concerning his recording
sessions with Mr. Spector.
I
hope this answers your question. If it's helpful, I shall try and find
the original material that was sent to me. If I can be of any more help
to you please don't hesitate to contact me.
Best wishes,
Mick Brown
From: Mick Brown <mick.brown@telegraph.co.uk>
Date: Tue, Mar 26, 2013 at 1:03 AM
Subject: Re: The Rise And Fall Of Phil Spector
To: Kelley Lynch <kelley.lynch.2010@gmail.com>
Hi Kelley,
Thank you for that, and I'm glad you're finding my interviews helpful.
I've
told you everything I know about the Leonard Cohen gun story and how it
appeared in Grand Jury testimony. I have no knowledge, thoughts or
theories beyond that.
Hope all's well with you.
Best,
Mick
[Phil Spector] Recording
Leonard Cohen, he approached the singer clutching a bottle of Jewish
ritual wine in one hand and a pistol in the other, which he shoved into
Cohen's neck, whispering 'Leonard, I love you.' Cohen with admirable
aplomb, simply moved the barrel away, saying 'I hope you do, Phil'.
From: Mick Brown <mick.brown@telegraph.co.uk>
Date: Mon, 29 Oct 2012 11:18:50 +0000
Subject: Re: Kelley Lynch Trial - Leonard Cohen, Phil Spector
To: Kelley Lynch <kelley.lynch.2010@gmail.com>
Kelley,
I have looked for the documents I was sent in connection with the Grand
Jury and been unable to find them. They were sent to me by my friend the
journalist and author Carlton Smith, who unfortunately has since passed
away. However, I'm sure you would be able to access them from the same
source as Carlton did. My understanding is they were/are on the public
record.
I do not recall ever saying to you that Cohen himself had testified. If I
did, it was my mistake. My recollection is that the statement from Leonard
Cohen was the same statement that had already appeared in media
interviews, pertaining to the incident in the studio during the recording
of 'Death Of A Ladies Man'. My recollection is that it was on a single
sheet of paper. I have no idea whether Leonard Cohen personally made this
statement to the DA, or whether - and I suspect this is the case - that
quote had simply been taken from previously published interviews
There was no mention of any statement attributed to Cohen in either of the
two subsequent trials.
Mick
Leonard
Cohen’s statements were indeed used in prosecution motions in Phil
Spector’s trials. The following are excerpts from the prosecution’s
Motion to Admit Evidence of Other Crimes in Case No. BA255233, filed on
August 14, 2008 and from the prosecution’s Motion in Limine to admit
evidence of other crimes filed on February 17, 2005.
“Defendant
Phillip Spector has built a history, spanning some 40 odd years,of
using gun-related violence when confronted with a situation when he
feels a loss of control, or a threat to his control. On February 17,
2005, the People filed a motion in limine to admit evidence of other
acts committed by Spector. Under that separate cover, the facts of the
following incidents were set forth in detail and in their entirety.
Thus, in an effort towards brevity, only a short recitation of such
incidents will be discussed below. Spector has a long history of
resorting to gun-related violence to exert his will when he does not get
his way. Int begins in 1972 and continues to the present.”
“C. The 1977 Brandishing on Leonard Cohen: 1977,
Spector produced musician Leonard Cohen's record album, "Death of a
Ladies man." during production of the record, Cohen and Spector, who
were friends, were taking a break in the lobby of the music studio.
Spector walked up to Cohen, placed on arm around Cohen's shoulders, and pointed a semi-automatic pistol at Cohen's chest with
his other hand. Spector told Cohen, "I love you Leonard." Cohen looked
at Spector and said, "I hope so, Phil." Spector then walked away from
Cohen.”
02/17/2005: Motion in Limine to admit evidence of other crimes:memorandum of points and authorities in support thereof.
These
versions of Leonard Cohen’s highly embellished good rock and roll Phil
Spector gun stories are crucial to Petitioner’s trial given the focus on
the testimony regarding Phil Spector, a gun incident, Cohen’s meeting
with LASD detectives, as well as the importance the prosecutor placed on
testimony she elicited with respect to District Attorney Steve Cooley
and Spector prosecutor Alan Jackson. There are essentially three
versions of Leonard Cohen’s gun stories allegedly involving Phil Spector
before LA Superior Court - or should be. One version continues to be
concealed from the record - and is critical exculpatory evidence.
Petitioner
maintains that she was denied her Sixth Amendment right to confront
adverse witnesses when her court appointed lawyers failed to subpoena
District Attorney Steve Cooley and prosecutor Alan Jackson. This error
was substantial and had an injurious effect on the verdict for the
reasons set forth above. Petitioner’s court appointee lawyers also
failed to confront LAPD Detective Viramontes on the witness stand
although he was present and available to testify during Petitioner’s
trial. This error was clearly substantial and had an injurious effect
on the verdict as Detective Viramontes recently told Petitioner that
Leonard Cohen simply did not feel comfortable with Lynch’s requests for
tax information and confirmed that his report simply sets forth Leonard
Cohen’s version of events which are highly fraudulent.
Sandra
Jo Streeter intentionally misled the jurors when she questioned
Petitioner and attempted to make it appear that Lynch - and not Cohen -
has issues with the IRS and owes back taxes. Streeter has no evidence
to support this outrageous assertion and it is blatantly deceitful.
Witness Rewards and Misconduct. (See Kyles v. Whitley (1995) 514 U.S. 419, 434, an important Brady case involving snitch testimony; U.S. v. Brumel-Alvarez,
976 F.2d 1235 (9th Cir. 1992) [drug conspiracy convictions reversed
because the government failed to disclose an internal DEA memorandum
which showed that one of its agents thought the key informant was
unreliable].) Recent examples: a. Jackson v. Brown, 513 F.3d 1057, 1070 (9th Cir. 2008) (Brady and Napue error re promises of benefits to snitches and not correcting perjured testimony.) b. Silva v. Brown (9th
Cir. 2005) 416 F.3d 980 (prosecutor makes a deal with a co-defendant
for a reduced sentence and a delay in the psychiatric examination, which
is not disclosed. Reversed under Brady.) c. U.S. v. Blanco (9th Cir. 2004) 392 F. 3d 382(failure to disclose snitch's immigration status warrants remand), d. Singh v. Prunty (9th
Cir. 1998) 142 F.3d 1157(prosecutor keeps from defense information
regarding the benefits conferred on its major witness which would have
demonstrated they he came forward to testify for reasons other than
civic duty).
e. Killian v. Poole,
282 F.3d 1204 (9th Cir. 2002) (the state’s key witness gave perjured
testimony, the prosecution failed to disclose impeachment evidence on
the snitch, and that the prosecution violated Doyle v. Ohio, 426 U.S. 610 (1976) by improperly referring to
petitioner’s post-arrest silence. Conviction reversed); accord Hurd v. Terhune, 619 F.3d 1080, 1091 (9th Cir. 2010). f. Benn v. Lambert,
283 F.3d 1040 (9th Cir. 2002) (Washington capital case, the Ninth
Circuit affirmed the district court's grant of relief on petitioner's
claim that the prosecution violated Brady by failing to disclose evidence undermining the testimony of its jailhouse snitch).
The
voice mail messages alone (which cannot be dated and which are out of
sequence) contain a tremendous amount of Brady material and impeachment
evidence that the prosecutor willfully disregarded and chose, instead,
to view as merely unsubstantiated allegations. The prosecutor also
elected to ignore Petitioner’s Motion to Quash addressing the perjury in
Leonard Cohen’s declaration in the Boulder, Colorado matter.
There is no good faith defense to Brady Error. Whether the withheld evidence was intentional, negligent or innocent makes no difference. Kyles v. Whitley
(1995) 514 U.S. 419, 437-38 [“But whether the prosecutor succeeds or
fails in meeting this obligation (whether, that is, a failure to
disclose is in good faith or bad faith, see Brady,
373 U.S. at 87), the prosecution's responsibility for failing to
disclose known, favorable evidence rising to a material level of
importance is inescapable].
The
usual remedy for prejudicial misconduct is a retrial. Federal double
jeopardy considerations support dismissal where objections and repeated
judicial admonitions did not deter the continued misconduct and the
court finds the prosecutor intentionally committed misconduct to gain a
mistrial. (Oregon v. Kennedy (1982) 456 U.S. 667, 676 ("Only where the
governmental conduct in question is intended to 'goad' the defendant
into moving for a mistrial may a defendant raise the bar of double
jeopardy to a second trial after having succeeded in aborting the first
on his own motion.")
Knowing Use of Perjured Testimony. Mooney v. Holohan
(1935) 294 U.S. 103; U.S. v. Lapage (9th Cir. 2000) 231 F.3d 488, 492:
(“All perjury pollutes a trial, making it hard for jurors to see the
truth. No lawyer, prosecutor, or defense counsel, civil or criminal, may
knowingly present lies to a jury and then sit idly by while opposing
counsel struggles to contain this pollution of the trial .... the
government’s duty to correct perjury by its
witnesses
is not discharged merely because defense counsel knows, and the jury
may figure out, that the testimony is false. Where the prosecutor knows
that his witness has lied, he has a constitutional duty to correct the
false impression of the facts ... By contrast, in this case, the
prosecutor sat silently as his witness lied and sat silently as his
witness evaded defense counsel’s ineffectual cross-examination ....
because the prosecutor delayed
the correction until rebuttal argument, the defense could no longer explain why the
lie .... was important.”)
Presenting false evidence and failing to correct it is misconduct. In Napue v. Illinois,
360 U.S. 264 (1959), the basis of such a claim was set forth.
Essentially, "the petitioner must show that (1) the testimony (or
evidence) was actually false, (2) the prosecution knew or should have
known that the testimony [or evidence] was actually false, and (3) that
the false testimony [or evidence] was material." U.S. v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003).)
As stated in People v. Talle
(1952) 111 Cal.App.2d 650, 677-678: "[Prosecuting] attorneys are
government officials and clothed with the dignity and prestige of their
office. What they say to the jury is necessarily weighted with that
prestige. It is their duty to see to it that those accused of crime are
afforded a fair trial . . . . [para. ] It would be a sad day for the
administration of justice if this court were to condone the substitution
of the personal belief of the district attorney . . . that the accused
should be convicted because the dist
rict
attorney thinks he should, for what the law guarantees -- a fair jury
trial." (Also quoted in People v. Criscione (1981) 125 Cal.App.3d 275,
292-293.)
Epithets about the Defendant are forbidden. See, e.g., People v. Ellis (1966) 65 Cal.2d 529, 540 [improper to resort to epithets like "liar" or "perjurer"]; People v. Conover
(1966) 243 Cal.App.2d 38, 46 [notes the fundamental rule prohibiting
prosecutorial statement of disbelief of defense witnesses especially
when the accusation carries with it the "perjury" label]; People v. Johnson
(1981) 121 Cal.App.3d 94 [reversing a conviction where prosecutor calls
defense testimony an "outright lie"].) Of course, the same goes for use
of racial or ethnic epithets in argument. (Kelly v. Stone (9th Cir. 1975) 514 F.2d. 18, 19.)
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
criminality, 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.
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.
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").
Prosecutor
Sandra Jo Streeter engaged in misconduct by distorting the truth,
attacking Petitioner’s character, misleading and misrepresenting facts,
using inflammatory rhetoric,
false statements and false evidence, and suppressing the truth by failing to disclose truth-enhancing evidence.
“In
order to preserve a claim of [prosecutorial] misconduct, a defendant
must make a timely objection and request an admonition; only if an
admonition would not have cured the harm is the claim of misconduct
preserved for review.” People v. Hawthorne
(2009) 46 Cal.4th 67, 90. Based on the extent of the misconduct
throughout the trial, an objection would have been futile. When the
record affirmatively shows that an objection would have been futile, a
reviewing court should reach the underlying issue despite a failure to
object. See People v. Welch (1993) 5 Cal.4th 228, 237; People v. Hamilton (1989) 48 Cal.3d 1142, 1184 and fn. 27; People v. Pitts
(1990) 223 Cal.App.3d 606, 692. Given the excessive false testimony
and perjury, it is difficult to imagine how a reviewing court could
reach any underlying issue.
Synopsis of False and Perjured Testimony
Excerpts from Respondent’s Reply Brief:
False
testimony in a criminal trial can have disastrous effects that are
impossible to reverse. According to attorneys and criminal justice
reform advocates, prosecutors across the country are engaging in
misconduct -- and getting away with it. While the most common forms of
prosecutorial misconduct are hiding exculpatory evidence and engaging in
improper examination and argumentation, another form of intentional
misconduct is the knowing use of false testimony to win convictions.
Perjury undermines a defendant's right to a fair trial, When the
government obtains a conviction through the knowing use of false
testimony, it violates a defendant's due process rights. When a
prosecutor knowingly allows perjured testimony to be heard, that's
prosecutorial misconduct. It is irrelevant that the witness did not
know the materiality of the false statement made by him; or that it did not, in fact, affect the proceeding in or for which it was made. It is sufficient that it was material, and
affected such proceeding. California perjury law inquires, for the
purpose of establishing materiality, whether the allegedly false
statement "could probably have influenced the outcome of the
proceedings." Pierce, 66 Cal.2d at 61, 56 Cal.Rptr. at 823, 423 P.2d at 975.
Cohen found many of the emails vile and annoying. RT 262. (Page 4)
The
City Attorney - using taxpayer dollars - has essentially argued,
throughout this case, that defamation is a criminal matter meant to
annoy Leonard Cohen. Whether or not Leonard Cohen was annoyed is
immaterial to the unconstitutionally vague and overly broad “intent to
annoy” statute (California Penal Code Section 653m). An individual
cannot be convicted of making annoying phone calls or electronic
communications unless the prosecution can prove that an individual
actually intended to annoy or harass someone. There is insufficient
evidence, on the record, that would support any contention - apart from
conjecture and self-serving comments (from a man with bias and motive) -
that Petitioner intended to annoy or harass Leonard Cohen with
statements that actually truthfully address his conduct. One does not
violate Penal Code 653m if one makes a phone call or sends an electronic
message in good faith, or for some kind of legitimate business purpose.
Penal Code 653m - “Nothing in this subdivision shall apply to
telephone calls or electronic contacts made in good faith or during the
ordinary course and scope of business." The government, in this case,
has attempted to narrow the undefined meaning of “legitimate business
purpose” to allege that Petitioner’s sole legal right to communicate
with Leonard Cohen, in good faith, related to requests for tax
information - particularly with respect to federal tax matters and the
Internal Revenue Service. Petitioner had a myriad of valid and
legitimate reasons to contact Cohen - including, but not limited to, the
fact that he is concealing evidence that he owes her millions
(corporate books and records) and has withheld commissions owed her.
Additionally, Petitioner has addressed issues having to do with slander
and defamatory remarks attributed to Cohen and other valid business and
legal issues.
Defamation
is an intentionally false communication, either written or spoken, that
harms a person's reputation; decreases the respect, regard, or
confidence in which a person is held; or induces disparaging, hostile,
or disagreeable opinions or feelings against a person. Defamation suits
rely largely on whether the plaintiff is a public or private figure..
The public figure law of defamation was first delineated in New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). In Sullivan, the plaintiff claimed that false allegations about him appeared in the New York Times,
and sued the newspaper for libel. The Supreme Court balanced the
plaintiff's interest in preserving his reputation against the public's
interest in freedom of expression. The Court declared that the First Amendment
protects open and robust debate on public issues even when such debate
includes "vehement, caustic, unpleasantly sharp attacks on government
and public officials." A public official or other plaintiff who has
voluntarily assumed a position in the public eye must prove that
defamatory statements were made with knowledge that they were false or
with reckless disregard of whether they were false. Petitioner did not
intentionally make false communications - either written or spoken -
that harmed Leonard Cohen’s reputation or induced disagreeable opinions
or feelings against him. Petitioner spoke honestly about Leonard Cohen,
including with respect to his conduct over the years, and a great deal
of her communications were made to the news media as well as the IRS,
FBI, DOJ, Treasury, FTB, and Phil Spector’s appellate attorney, Dennis
Riordan. The argument that Leonard Cohen felt annoyed by his own
conduct and actions is factually absurd and preposterous. Leonard Cohen
is a public figure who has used the news media to attack and defame
Petitioner. In fact, Leonard Cohen gave Brian Johnson/MacLean’s an
interview in or around August 2005 (coordinated with his retaliatory
lawsuit against Petitioner and in defense of Neal Greenberg’s lawsuit
against him) in an attempt to defend himself and the legal accusations
against him: “That night he told me what he'd hinted at months earlier
in an email -- that he'd been stripped of most of his assets, and was
mired in a legal battle with his money managers, who would accuse him of
extortion. He said it would get nasty and personal, and that his name
would be dragged through the mud.” Up Close and Personal by Brian
Johnson/MacLean’s Magazine, August 17, 2005. Brian Johnson, a Canadian
journalist, is a long-standing fan and supporter of Leonard Cohen.
“Through interviewing him over the years, I've developed a bit of a
relationship with Leonard Cohen. We stay in touch by email, and if I'm
in Los Angeles or Montreal, the two cities he calls home, I might look
him up ... Now, after reading the pre-emptive lawsuit filed against him,
a 34-page screed that reads like a salacious tabloid, I know what he
meant. It's bizarre, and sad.” It seems obvious that Leonard Cohen, a
skillful manipulator of the news media, used this interview in an
attempt to collaterally attack Neal Greenberg’s lawsuit against him.
Leonard Cohen skillfully slandered and defamed Petitioner who was used
as a witness against him in that matter.
In
the voicemails left during the charged periods, appellate ... often
accused Cohen of taking drugs. RT 59, 130, 154 (page 3). Accusing
Cohen of drug abuse RT 138, 40-41 and of molesting his children. RT 90.
Leonard Cohen Direct: Streeter:
Was there ever any discussion about alcohol or drugs in any of the
voice mail messages? Cohen: There were accusations that I was on drugs
… She often accused me of being on drugs. RT 59 Streeter: In any of
the emails do you recall if she ever accused you of alcohol or drug
usage? Cohen: She routinely accused me of drug abuse. Not alcoholism,
but drug abuse. RT 61 Streeter: Is there a specific drug that she
accuses you of using, Mr. Cohen? Cohen: No, she doesn’t specify. I
think she -- she accuses me of being on legal meth. RT 136 Streeter;
Is there any mention of drug use in that email Mr. Cohen? Cohen: I
can’t see any mention. RT 137 Streeter: Now, looking at that, was
there any mention in that email about drug usage on your part? Cohen:
Yes, I’m accused of abusing drugs. RT 139
Streeter:
How did it feel to not only be accused of being a drug user but have
her send out such accusations to people that you don’t know? Cohen:
It’s not a pleasant sensation … I felt my reputation was being assailed
and the reputation of my family. RT 142 Streeter: And do you recall
any mention in that voice mail message about drug usage on your part?
Cohen: Yes, I’m accused of using drugs. RT 154
Sidebar: Public Defender: I’ve done some research on Mr. Cohen and he’s in the past
made interviews about having used legal and illegal drugs. Court: No we’re not going to get into the issue of his drug use. PD: The evidence that was presented points to, perhaps, defamatory in nature. And I do think that if that’s the case that the people be
precluded from saying that because drug use was mentioned, therefore, it was harassing and threatening. Streeter: The people mentioned the drug usage not to use as defamatory, that was more as a common scheme and plan and I did it … that was the reason the people did that. PD: … Those messages referred to prior drug use and not necessarily current drug use. RT 433
made interviews about having used legal and illegal drugs. Court: No we’re not going to get into the issue of his drug use. PD: The evidence that was presented points to, perhaps, defamatory in nature. And I do think that if that’s the case that the people be
precluded from saying that because drug use was mentioned, therefore, it was harassing and threatening. Streeter: The people mentioned the drug usage not to use as defamatory, that was more as a common scheme and plan and I did it … that was the reason the people did that. PD: … Those messages referred to prior drug use and not necessarily current drug use. RT 433
Leonard
Cohen’s history of legal and illegal drugs (including prescription
meth, LSD, mandrax, etc.) is a matter of the public record. Asking
someone - due to their inconceivably deranged conduct - if they are
still on drugs is not an attempt to assail someone’s reputation.
Leonard Cohen assailed his own reputation through his use of drugs and
is more than happy to discuss his dabbling in drugs with journalists but
when he took the stand in Petitioner’s trial, it was she who attempted
to assail his reputation. Leonard Cohen’s conduct is not an intent on
the part of Petitioner to annoy Leonard Cohen.
High
old times: His days of pharmaceutical hijinks are no doubt long behind
him, but in Simmons’ biography, Cohen is candid about his enthusiastic
drug use back in the day. He took Maxiton (speed), Mandrax, hashish,
opium and acid. Cohen told Simmons: “My [1966] novel Beautiful Losers
has a bit of acid in it and a lot of speed.”
http://www.timescolonist.com/entertainment/music/leonard-cohen-secrets-of-a-poet-balladeer-1.81913
Leonard Cohen Direct: Streeter:
You mentioned -- you mentioned that Ms. Lynch often accused you of
hurting other children; is that right? Cohen: I’m sorry? Streeter:
Did Ms. Lynch in any of her emails accuse you of molesting your
children? Cohen: Yes, she did.
Streeter:
Do you know what NAMBLA is, Mr. Cohen? Cohen: I think it’s an
organization of male and that affirms or encourages re -- sexual
relations between men and children.
Streeter; Did she ever mention that in any of the emails that she sent you, Mr. Cohen?
Cohen:
Sounds familiar, but I can’t -- I can’t say for sure. I think so. RT
90 Streeter: You mentioned that you do recall her sending you emails
in reference to the NAMBLA Association? Cohen: Right. Streeter: Is
there any mention of that in that email, Mr. Cohen? Cohen: Yes, there
is. Streeter: And after -- is there any mention of the minor children
in reference to the -- that organization? Cohen: To my minor children
--
Streeter: Or minor children. Cohen: I don’t think this particular email is referring to me.
Streeter.
But there is mention of that? Cohen: But there is a mention that a
lawyer might be molesting her minor child and that he might be a member
of NAMBLA. RT 91/91
Petitioner
did not accuse Leonard Cohen of molesting his children and he does not
have minor children. The above testimony relates to a lawyer in the Bay
Area, Stephen Gianelli, who has relentlessly targeted Petitioner and
her family since hearing from Leonard Cohen’s lawyers in June 2009. He
has engaged in what Petitioner believes is an intentional pattern of
witness intimidation, witness tampering, criminal harassment, stalking,
and other egregious conduct - including cyber-terrorism with others who
appear to have coordinated their efforts to slander, defame, and
undermine Petitioner’s credibility. Stephen Gianelli is an adult male
who relentlessly contacted my children and I have been clear - any adult
stranger who attempts to lure my then minor son into privately
communicating with them will be viewed as a potential sexual predator
and possible NAMBLA member. The introduction of this email - that
clearly did not relate to Leonard COhen - is an example of how the
prosecutor would introduce immaterial, irrelevant, and inflammatory
evidence during the trial. At times, Leonard Cohen was not a recipient
on the email although he was willing to testify that he was.
Excerpt of Ann Diamond Email:
From: Ann Diamond <anndiamond2011@gmail.com>
Date: Tue, Sep 6, 2011 at 10:54 PM
Subject: Re:
To: Kelley Lynch <kelley.lynch.2010@gmail.com>
re:
what Freda told me. I met her in the street one day in 1995 (I think)
and she asked me if I thought the story Lorca had told her daughter, re;
Cohen molesting her from age 4, could be true. I thought about it and
said "Yes, it could." This was the first time I had my 15-year-old vague
suspicion confirmed by anyone. After that I went home and went to bed
for about 24 hours, after which I decided to move off the block. At the
time it suddenly seemed to be that my whole history of living on Saint
Dominique (from 1983 on) including threats, attacks, and other bizarre
incidents, revolved around this secret.
Appellant
regularly, falsely accused Cohen of testifying before a secret grand
jury in the Phil Spector murder trial, resulting in Spector’s
conviction.
FN 10 - Cohen did not do so, has had no involvement in the Spector
trial, and has had no dealings with Spector since 1977-78 when Spector
produced a record of Cohen’s RT 57, 157, 159 (page 3). Her emails
accused Cohen “over and over” of testifying before a grand jury in the
Phil Spector murder trial, and perjuring himself during this imagined
testimony, resulting in Spector’s conviction. RT 61, 160, 162, 163,
179. (Page 3-4). Petitioner imagined no testimony. According to Mick
Brown/UK Telegraph (and this was concealed from the jurors), he reviewed
the Grand Jury testimony/transcripts. According to Mick Brown, Leonard
Cohen’s statements were presented to the Grand Jury. Furthermore, the
prosecutor in Phil Spector’s matter used Cohen’s statements in motions
filed in 2005 and 2008 that are readily available online (including at
LA Superior Court’s website under High Profile trials).
Prosecutor Sandra Jo Streeter - Opening:
There
is -- the evidence will show that Ms. Lynch was upset and Mr. Cohen and
fought with the District Attorney’s office to file charges against him.
Was upset with the District Attorney, the LA County District
Attorney’s didn’t file charges against Mr. Cohen. RT 40
Leonard Cohen - Direct:
Prosecutor: What about -- did she ever mention Phil Spector or Phillip in any of those?
Cohen:
Yes, she accused me of -- she accused me of testifying before a secret
Grand Jury which resulted in the conviction of Phil Spector which
resulted in the conviction of Phil Spector.
Prosecutor: Do you know Mr. Spector?
Cohen: I knew him. He produced a record of songs that we wrote together. It was in 1977. RT 57
Cohen:
She often mentioned Phil Spector, repeating over and over that I had
testified before a Grand Jury and I was involved in the conviction of
Phil Spector. RT 61
Email - April 18, 2011 RT 161
- This is the email where Cohen confirms that he is copied in on the
email. See cross - he was not. The email was to Dennis Riordan.
Cohen: It says, Cohen told me Phillip never held a gun on him, and that would support what he told the LAPD. RT 161
Streeter: Is there any reference to Mr. Cooley?
Cohen:
Yes. It says, Cooley’s tough on crimes but doesn’t mind young men
being maimed. He has to stand with the thief, Cohen. RT 198
Often, appellant accused Cohen of being indirectly responsible for her losing custody of her son, Ray. RT 58 (page 3).
Leonard
Cohen and his lawyer, Robert Kory, were meeting with Petitioner’s
ex-husband (Steve Lindsey), accusing her of having sex with men like
Oliver Stone, and encouraged Lindsey to take custody of Petitioner’s son
from her. This matter was coordinated to crush Petitioner into what
she viewed as an illegal deal. Kory testified that he filed a
declaration in Petitioner’s son’s custody matter - therefore, he and
Cohen were involved in the custody matter that ended up in a default and
was not argued on the merits. That happened because Lindsey hired a
vile and vulgar lawyer who lies in court and refused to change the date
of the hearing.
She also many times suggested Cohen responsible for an accident that befell her son, Rutger. RT 58, 156 (page 3).
This
is a completely fabricated assertion and false accusation. Petitioner
knows for a fact that Leonard Cohen owes her millions of dollars. Her
son was injured and she asked that he pay her the commissions he
withheld as well as the value of the intellectual property she owns,
etc. Petitioner has been clear (and her son feels the same way) - if
Petitioner hadn’t been forced into bankruptcy and homelessness by
Leonard Cohen, her son would have been in college full time and not
working at Whole Foods. Leonard Cohen simply doesn’t like that fact.
She would leave messages about the Aryan Nation to Cohen, who is Jewish. RT 130. (Page 3).
Leonard
Cohen testified, on cross, that the Aryan Nation matter did not relate
to him but he viewed it as an implied threat. Cohen was a Buddhist the
entire time Lynch knew him.
Petitioner
ended up homeless. She has a right to discuss what happened to her -
including in emails that the IRS, FBI, DOJ, and Treasury are copied in
on. The FBI was investigating a murder that involved the Aryan Nation,
meth labs, meth cooks, the Cartel, and an acquaintance of Petitioner’s
from when she was homeless in Santa Monica. This matter had nothing to
do with Leonard Cohen. It was not an implied threat but does prove that
Leonard Cohen will say anything on the witness stand.
Streeter: Looking at People’s 14, was there any mention of the Aryan Nation or Brotherhood in that email, Mr. Cohen?
Cohen:
In this email, yes, Ma’am, there is. RT 133 Public Defender: I think
per the rule of completeness -- RT 134 Streeter: How did it feel to
get an email from Ms. Lynch that mentioned the Aryan Nation sent to you?
Cohen: Well, I understood the implied threat. RT 134 Cohen: I
think she mentioned in that voice mail that the Aryan Nation was
involved in running meth labs. RT 136
Leonard Cohen Cross: PD:
You also mentioned that you were threatened with an email that
referenced teh Aryan Nation. Do you remember that? Cohen: Correct.
PD:
Now, you just read the part that said Aryan Nation when you were asked
about it, correct? Cohen: Right. PD: Now, the actual sentence says,
P.S. More than one member of the Aryan Nation, so to speak, ended up
protecting me on the streets of Santa Monica.” That’s what the whole
sentence says, correct? And you’re aware that Ms. Lynch was actually
homeless on the streets of Santa Monica. Cohen: Correct. PD: Nowhere
does that sentence say anything about you correct? … Cohen: This
particular sentence has no mention to me, no. PD: Okay. And -- Cohen:
-- Although there is an implied menace there.
PD:
So that was an implied menace to you? Cohen: Yes, sir. When an
enemy tells you that the Aryan Nation is protecting her, you would be
concerned. PD: So you consider Ms. Lynch an enemy? Cohen: She
considers me an enemy. RT 310
Appellant would threaten to “take” Cohen “down.” RT 315 (Page 3).
This
is not a threat. The mere notion is absurd. Boies Schiller reviewed
three huge boxes of evidence; understood Cohen owes me millions; felt
Cohen and Kory were attempting to engage me in criminal conduct; and
advised me to go to an attorney, tell them BS reviewed the evidence,
offer them 30%, and ask them to help me take another “Hollywood fraud.”
Kelley Lynch Cross: Do
you remember telling Mr. Cohen a number of times in these emails that
you were going to take him down? Lynch: Yes, and I’ve also said very
many times legally. It’s even in the LAPD Complaint. But there are
times that you’ve just said, I’m going to take him down? Lynch: Yeah.
That’s a colloquial way of speaking. Absolutely. RT 521
The emails were routinely very long, sometimes as long as 50 pages. RT 59 (Page 4).
The
emails were not routinely very long. They contained threads and
forwards that did not relate to Leonard Cohen because that information
was for Petitioner’s private purposes and that would include documenting
the destruction of her life for the IRS Commissioner’s Staff (and
others) since reporting Leonard Cohen’s tax fraud to Agent Bill Betzer,
the IRS Fraud Unit, and the IRS in Washington, DC on or about April 15,
2005 and thereafter.
Appellant
emailed, on December 22, 2011, Cohen and many others, including DA
Cooley, in which the subject line said “Leonard Cohen does indeed have a
small, if non-existent penis.” RT 260 (Page 4).
This
comments relates to sexual harassment on the part of Cohen with respect
to Petitioner. Leonard Cohen would have Petitioner read him business
and legal documents when he soaked in a bubble bath. He would expose
his penis to Petitioner. Ordinarily that is viewed as indecent exposure
and sexual harassment - and not an intent on the part of the victim to
annoy the individual engaged in this conduct. Documents Cohen had
Petitioner read him are relevant to the probable Leonard Cohen tax fraud
matter which Lynch addressed with the IRS Commissioner’s Staff and
others.
Streeter: And the subject about that email is Mr. Cohen’s penis.
Lynch:
… My gay friend, Michael, asked me, what size Mr. Cohen’s penis was,
and felt that perhaps he’d like to discuss that. RT 506
Streeter:
Are the people correct in understanding that you don’t see that as
annoying to send out a mass email about a gentleman’s penis size?
Lynch: I have no idea. Mr. Cohen didn’t mind looking at people defecating on one another in front of me.
Streeter: Do you consider that annoying, Ms. Lynch.
Lynch: I have no idea. I would consider it annoying to have to ask for tax information for six years. RT 508
Lynch: Because he went into my son’s father’s office and said I had sex with Oliver Stone.
Streeter: Okay. So you remember saying that, right?
Lynch:
Because he went into my son’s father’s office and -- after we parted
ways, and said I had sex with Oliver Stone, which I did not.
Streeter; Do you think that’s annoying?
Lynch:
No I think it’s outrageous that he would go in and lie about that … He
accused me of having sex with his tax lawyer, which I did not. I found
that outrageous. To my son’s father.
Streeter: You don’t think that’s annoying.
Lynch: It was indeed annoying to me. Unbelievable. RT 509
Streeter: Do you think it’s annoying -- would be annoying to Mr. Cohen?
Lynch:
Why would Mr. Cohen accuse me of having sex with his tax lawyer and
Oliver Stone and be annoyed? It seems like I should be annoyed since he
lied. RT 510
Default Judgment
Leonard Cohen Cross:
Kelly: Now I want to talk to you about that -- that default judgment
that you had mentioned earlier. Now, you know what a default judgment
is, correct? Cohen: I -- I have some -- a knowledge of it, yes.
Kelley: Okay. So you know that a default judgment means that Ms.
Lynch didn’t actually participate in the litigation, correct? Cohen:
Yes, that’s what it means. Kelly: Okay. And that means that Ms.
Lynch didn’t give her version of what happened to the court, correct?
Cohen: She neglected to give her version. Kelly: I’m not asking if
she -- I’m asking if she actually did give her version. Cohen: A
default judgment implied that -- that only one version is given. Kelly:
Okay. And so that version was yours, correct? (RT 297) Cohen: That
version was upheld by the court, yes, Sir. Kelly: I’m not asking
about the court. I’m asking if that version was yours. Cohen: It was
mine on the basis of a forensic accounting. Kelly: But it was your
version, correct? Cohen: Yes, Sir. Kelly: And that judgment was made
in her absence, correct? Cohen: Yes. (RT 298)
Defense Closing: Ms.
Lynch has been requesting documents related to accusations made against
her for over six years. Her wages have been garnished by the state tax
authorities and she’s desperate to get these critical documents to
clear her name and to move on with her life. She’s not represented by
any attorneys in her civil matters. She represents herself. She’s
trying to clear her name. RT 597 Nobody comes up and shows you a
letter or a document or a receipt showing we turned these documents over
to her … Nobody said that. Why not? Because it didn’t happen … They
never gave her what she asked for. And they kept stone walling her and
stone walling her. RT 597 The prosecution failed to impeach her on
anything she said. They brought not one witness, not one document,
nothing to impeach her story. Why not? Because it’s true. RT 598 I
don’t believe Ms. Lynch -- or the evidence shows that Ms. Lynch intended
to annoy or harass anybody. RT 598
Criminalizing Petitioner’s Speech Is A First Amendment Violation
The
First Amendment to the Constitution states “Congress shall make no law
abridging the freedom of speech.” U.S. Const. Amend. I. The Penal Code
at issue here, 653m, is unconstitutional as applied to Petitioner’s
alleged voice mail and email messages which, at worst, amount to
protected criticism of a public figure with the news media and various
government agencies. While the government may appropriately bar some
expressive conduct, any attempted application to criminalize Mr. Lynch's
freedom of expression is unlawful under the First Amendment,
particularly given the fact that she has been entirely truthful. In
other words, Ms. Lynch has not engaged in slander or defamation with
respect to Leonard Cohen who has taken the rather bizarre position that
he has a right to be annoyed by speech that addresses the very conduct
he has engaged in. Whether or not Leonard Cohen is annoyed is
irrelevant with respect to the elements of the crime. Any individual -
with motive or bias - can simply take the witness stand, conjure up a
captivating sentiment, and say that they were annoyed or fearful.
The First Amendment Bars Efforts to Criminalize Speech Absent Additional Offending Conduct
Generally, a criminal statute violates the First Amendment's right to free speech if it
imposes
criminal liability on the basis of speech alone. “The First Amendment
literally forbids the abridgment only of 'speech' .…” Texas v. Johnson, 491 U.S. 397, 404 (1989). See also Republican Party of Minn. v. White,
536 U.S. 765, 793 (2002) (Kennedy, J., concurring) - “Here, a law is
directed to speech alone where the speech in question is not obscene,
not defamatory, not words tantamount to an act otherwise criminal, not
an impairment of some other constitutional right, not an incitement to
lawless action, and not calculated or likely to bring about imminent
harm the State has the substantive power to prevent. No further inquiry
is necessary to reject the State's argument that the statute should be
upheld.”
Petitioner
was prosecuted on the basis of the content of her speech, not conduct.
Given the government's reliance on the content of her messages and the
absence of any real allegation of action apart from speaking online, the
government's theory must be that the content of Petitioner's speech
caused the victim to become annoyed or harassed - regardless of facts,
the truth, the totality of circumstances, concealed ipeachmenet
evidence, misstatements of facts, out of context accusations and
allegations, or Leonard Cohen’s bias and motive. But such a
construction of a statute is impermissible under the First Amendment.
The Content of Ms. Lynch's Speech is Protected Under the First Amendment
Apart
from seeking to criminalize speech absent any offending conduct, the
government's indictment of Petitioner is further deficient in that it
impermissibly seeks to impose criminal liability based on the content of
that speech.
Leonard
Cohen is a Public Figure, and the Government's Allegation That Ms.
Lynch Intentionally Intended to Annoy Him Through Her Speech Is
Insufficient as a Matter of Law to Support a Valid Claim
Leonard Cohen – a well known celebrity – is unquestionably a public figure. The
government's
arguments with respect to the LA Times Motion confirm that Leonard
Cohen has “assumed a role of special prominence in the affairs of
society" such that he has “invited attention and comment” and thus
gained the status of a public figure for First Amendment purposes. Gertz v. Robert Welch, Inc., 418 U.S. 323, 354 (1974).
The
government's allegation that Ms. Lynch contacted public figure Leonard
Cohen with an intent to annoy or harass him is insufficient to state a
criminal claim as it contradicts the controlling Supreme Court precedent
in Hustler Magazine v. Falwell
and its progeny. Even if Ms. Lynch’s utterances and writings were
intended to annoy Leonard Cohen - which they categorically were not,
such expression IS constitutionally protected. Hustler, 485 U.S. at 53. As the Supreme Court explained:
"[A] law imposing criminal penalties on protected speech is a stark example of speech
suppression" that violates the First Amendment. Ashcroft v. Free Speech Coal.,
535 U.S. 234, 244 (2002). The penal code under which Ms. Lynch was
charged and convicted impermissibly suppresses such protected speech. As
such, the conviction against her must be dismissed.
Darden v. Wainwright,
477 U.S.168, 181 (1986) set forth criteria for the prejudice inquiry:
(1) the nature and seriousness of the prosecutorial misconduct, (2)
whether the prosecutor’s statements were invited by impermissible
conduct by defense counsel, (3) whether the trial court instructed the
jury to disregard the statements,(4) whether the defense was able to
counter the improper arguments through rebuttal, and (5) the weight of
the evidence against the defendant. Id . at 181-82. Here, the
prosecutorial misconduct was quite serious and was not invited by
impermissible conduct by defense counsel. Further, the trial court did
not instruct the jury to disregard the offending statements, and the
defense was unable to counter the improper arguments through rebuttal.
Finally, the weight of the evidence against the petitioner was not
strong. Id. at 181-83.
Surely then, the prosecution arguments had a substantial and injurious effect or influence in determining the jury’s verdict. Brecht v. Abrahamson,
507 U.S. 619, 637-38 (1993). In assessing such impact, in must be kept
in mind that a prosecutor’s statement to the jury “carries with it the
imprimatur of the Government and may induce the jury to trust the
Government’s judgment rather than its own view of the evidence.” U.S. v. Young, 470 U.S. 1, 18-19 (1985).
Based on the aforementioned misconduct, and other errors, Petitioner’s right to a fair trial was sacrificed.
CONCLUSION
For the above stated reasons, the Court should grant the Petition.
April 29, 2013
