Kelley Lynch
In Propria Persona
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
COUNTY
OF LOS ANGELES
PEOPLE OF THE STATE OF
CALIFORNIA Case No. 2CA04539
Plaintiff
Vs.
KELLEY LYNCH Date
of Hearing:
Time
of Hearing:
Department : 47
Defendant
BRADY MOTION
TO THE CITY ATTORNEY,
COUNTY OF LOS ANGELES,
PLEASE TAKE NOTICE that on the above date and
time or as soon thereafter as the matter may be heard in the above court, the Defendant
will move the court for an order granting pretrial Brady discovery and a
continuance.
This motion will be made on the ground that the
City Attorney has (or should have) in his or her actual constructive possession
certain items (both exculpatory and impeachment) of evidence which the
defendant Kelley Lynch is legally entitled to.
Defendant raised her Brady evidence request at
the discovery hearing on December 9, 2013 and is entitled to this evidence. The City Attorney advised the Court that
there is no exculpatory evidence and then qualified that statement by advising
the Court that they were not in possession of LAPD’s records. This seems like an incredibly shabby standard
for determining whether or not Brady material exists. As Lynch advised the Court, the City Attorney
of Los Angeles has relentlessly lied about her and she should not be required
to take their word for anything.
A
trial is a search for truth, not a game of hide and seek. This principle is never more true than in
criminal trials, where “the People of the State of California” are deciding
whether to take away a citizen’s civil liberty.
To ensure that criminal proceedings embrace trustworthy truth-seeking
procedures, the statutes governing criminal trials in California include, among
others, two provisions requiring the disclosure of evidence to the
defense. These laws implement
constitutional protections recognized by the United States and California
Supreme Courts as indispensible components of Due Process in criminal
proceedings. These mandates are clear
and fundamental. By engaging in this
high stakes game of hide and seek, a prosecutor undermines the reliability,
fairness, and truth-seeking function of criminal trials and wastes valuable
taxpayer assets. By withholding
exculpatory and impeachment evidence, prosecutors violate their duties under
Penal Code Section 1054.1(e) and Brady v. Maryland, 373 U.S. 83 (1963),
and its progeny.
Penal Code Section 1054.1(e) mandates that
prosecutors “shall disclose” to the defense “any exculpatory evidence.” The California Supreme Court has held that
Section 1054.1(e) imposes a duty on prosecutors to disclose, pre-trial, all
exculpatory evidence, without qualification.
See Barnett v. SuperiorCourt, 50 Cal. 4th 890, 901
(2010). The U.S. Supreme Court
recognized that a prosecutor violates Due Process by proceeding to trial
without disclosing exculpatory evidence to the defendant. See Brady,
373 U.S. at 86.
In
support of this Motion, the Defendant would show that the items and information
are within the exclusive control and custody of the prosecution team (which includes
law enforcement), the items are not privileged, and that a Brady violation
occurs when the prosecution fails to disclose evidence that is favorable to the
accused or potentially impeaches a government witness.
Penal
Code Section 1054.1 requires disclosure of names and addresses of witnesses,
statements by the defendant, all relevant real evidence, the existence of
felony convictions of material witnesses, any exculpatory evidence and relevant
written or recorded statements of witnesses the prosecution intends to call or
reports by them at least 30 days before trial.
Defendant has been provided with random emails and a list of proposed
witnesses all of whom are part of the prosecution’s team.
MEMORANDUM
OF POINTS & AUTHORITIES
In Brady v. Maryland, 373 U.S. 83,
87 (1963), the United States Supreme Court held that “the suppression by the
prosecution of evidence favorable to an accused…violates due process where the
evidence is material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.”
Government
disclosure of material eculpatory and impeachment evidence is part of the
constitutional guarantee to a fair trial.
Brady v. Maryland; Giglio
v. United States, 405 U.S. 150, 154 (1972).
The law requires the disclosure of exculpatory and impeachment evidence
when such evidence is material to guilt or punishment. Brady
v. Maryland, Giglio v. United States. Because
they are Constitutional obligations Brady
and Giglio evidence must be disclosed
regardless of whether the defendant makes a request for exculpatory or
impeachment evidence. Kyles v.
Whitley, 514 U.S. 419, 422-433 (1995).
It is the obligation of the prosecutor, in preparing for trial, to seek
all exculpatory evidence from all of the members of the prosecution team. Members of the prosecution team include
federal, state, and law enforcement officers and other government officials
participating in the investigation and prosecution of the criminal case against
the defendant. Kyles v. Whitley. Due process
requires that disclosure of exculpatory and impeachment evidence material to
guilt or innocence be made in sufficient time to permit the defendant to make
effective use of that information at trial.
See, e.g. Weatherford v. Bursey, 429 U.S. 545, 559 (1997); United
States v. Farley, 2 F.3d 645, 654 (6th Cir. 1993).
Brady and its progeny
impose on the prosecution a “duty to learn of” 1) and disclose to the defense
all “favorable,”2) “material,” 3) information, 4 )“known to the others acting
on the government’s behalf in the case, including the police,”5) a group
commonly referred to as “the prosecution team.”
The prosecution must disclose this information “at such a time” and in
such a manner “as to allow the defense to use the favorable material effectively”
– which, as a practical matter, means well before a hearing, because “the due
process obligation under Brady to disclose exculpatory information” is
for the purpose of allowing the defense an opportunity to investigate their
case and craft an appropriate defense.
The Court in Brady
simply spoke of the duty to disclose information “favorable” to the
defense. Subsequent decisions have referred to the duty to disclose exculpatory
and impeaching information. SeeStrickler
v. Greene, 527 U.S. 263, 281-82 (1999). Exculpatory
information is any information that the defense would want to know about. Impeachment information typically refers to
information that tends negatively to impact on the credibility or reliability
of a government witness. Impeachment
evidence would also include any evidence of past dishonesty on the part of a
witness. A prosecutor’s duty to disclose
impeaching information is the same as his/her duty to disclose exculpatory
information.
Brady encompasses all favorable information whether
or not it is admissible at trial or even previously documented or memorialized. Although Brady
itself uses the term “evidence,” the Brady doctrine encompasses any
information, directly admissible or not, that would be favorable to the
accused in preparing his or her defense.
Evidence
which is material either to the guilt or punishment of the defendant must be
disclosed to the defendant in a timely manner.
Brady v. Maryland. Evidence that will play a role in uncovering admissible
evidence, aiding witness preparation, corroborating testimony, or assisting
impeachment or rebuttal must be provided by the government. United
States v. Bagley.
“Taken
together, this group of constitutional privileges delivers exculpatory evidence
into the hand of the accused, thereby protecting the innocent from erroneous
conviction and ensuring the integrity of the criminal justice system.” California
v. Trombetta, 467 U.S. 479, 485 (1984).
If this material evidence exists in the hands of the government or an
agent of the State, the failure to disclose this evidence is a violation of the
precepts of Brady v. Maryland; See
also Kyles v. Whitney. “In fact, an individual prosecutor has a duty
to learn of any favorable evidence known to the others acting on the
government’s behalf in the case, including the police.” Id.
Brady requires the
prosecutor to disclose exculpatory and impeachment evidence. Brady
requires this without condition that the prosecutor decides on its
materiality. It is not limited to
material that tends to prove innocence but includes information that can be
used to impeach prosecution witnesses. The defense is in the best position to
determine what they feel would impeach a prosecution witness.
It is the trial prosecutor’s duty to learn of Brady information. A prosecutor’s Brady disclosure obligation is
not limited to information of which a prosecutor has actual knowledge; rather, a
prosecutor has a “duty to learn of” Brady information in the case. Kyles,
514 U.S. at 437.
The argument
that a trial prosecutor’s duty of disclosure to favorable information is
limited to that which he/she has actual knowledge of has been rejected because it
would not serve the fairness goals of the Brady mandateThe police are
also part of the prosecution team.
It is
illegitimate for a prosecutor to assert pretrial that it may withhold Brady information
because the defense should be able to learn of this favorable information
through other means. In Strickler,
527 U.S. at 283-284, the Supreme Court rejected the argument that defense
counsel should have uncovered Brady information, stating that counsel
was entitled to rely on the representations of the prosecutor and, more
generally, on the prosecutor’s constitutional duty of disclosure. Likewise, in Banks,
540 U.S. at 695-698, the Court declared that “[a] rule . . . declaring
‘prosecutor may hide, defendant must seek,’ is not tenable in a system
constitutionally bound to accord defendants due process.”
It is the prosecutor’s duty to learn of Brady information in the
possession of the entire “Prosecution Team.”
A prosecutor “has a duty to learn of any favorable evidence known to the
others acting on the government’s behalf in a case,” Kyles, 514 U.S. at
437 – id., aka “the prosecution team.” The prosecutor’s duty to learn of
favorable information in possession of the prosecution team extends to
information that has not been memorialized.
Police and witness interviews, notes and recordings should be
memorialized. Interview
memoranda of witnesses expected to testify, and of individuals who provided
relevant information but are not expected to testify, should be disclosed.
Kelley
Lynch argues that the information the City Attorney has withheld is important
vis a vis the prosecution’s theory of the case and her defense. Clearly, this information could help the
defense attack the quality and credibility of the investigation in this case,
evidence, and the witnesses themselves. The
U.S. Supreme Court endorsed such an argument in Kyles, 514 U.S. at 445
(suppressed information was material because “it would have raised
opportunities to attack not only the probative value of crucial physical
evidence and the circumstances in which it was found, but the thoroughness and
even the good faith of the investigation, as well.”); see also id. at
446 n.15 (“indications of conscientious police work will enhance probative
force [of the prosecution’s evidence] and slovenly work will diminish it”).
The
government’s “no Brady/exculpatory evidence” response, if left unaddressed,
will potentially harm the defense. As
the Supreme Court in Bagley specifically acknowledged, the more
specifically the defense requests certain evidence, thus putting the prosecutor
on notice of its value, the more reasonable it is for the defense to assume
from the nondisclosure that the evidence does not exist, and to make pretrial
and trial decisions on the basis of this assumption. . . . . [T]he reviewing
court may consider directly any adverse effect that the prosecutor's failure to
respond might have had on the preparation or presentation of the defendant’s
case. Bagley, 473 at 682-83. Lynch attaches a specific list of materials
she requests the Court to order the City Attorney to hand over to her. She is requesting that the Court order the
prosecution to turn over this material and continue this matter for a
reasonable period of time in order for Lynch to properly prepare her defense.
The
government clearly does not take its Brady
disclosure obligations seriously and their calculated attempt to withhold
this evidence must be scrutinized. Agurs,
427 U.S. at 106 (“When the prosecutor receives a specific and relevant [Brady]
request, the failure to make any response is seldom, if ever,
excusable.”). Brady material is also an ongoing matter with respect to Lynch’s
2012 trial.
The
government’s “no Brady” response coupled with newly discovered evidence,
statements made by LAPD’s TMU to Lynch, and Lynch’s calls to the City
Attorney’s office advising them that she did not want to be copied in on emails
with Sandra Jo Streeter and Vivienne Swanigan are obviously material. Lynch also believes her complaints to
Streeter’s supervisor, Will Rivera, with respect to her misconduct throughout
the trial are material and relevant. The
government is not carefully reviewing the information in its possession – again
demonstrating a need for scrutiny by the court – and/or evidence that the government
is trying to hide is material. See Silva
v. Brown, 416 F.3d 980, 990 (9th Cir. 2005) (prosecution’s efforts
to suppress Brady demonstrates its materiality: noting with respect to a
secret deal with a witness, “Presumably, the importance to the State’s case of
[the witness] James’s testimony is what initially led the prosecution to make
the secret deal; likewise, the importance to James’s credibility of his false
testimony regarding the absence of a deal is what led the prosecution to
endeavor to keep that deal secret.”). Other
jurisdictions have similarly rejected the prosecution’s attempt to usurp the
jury’s function of weighing the evidence and assessing credibility.See, e.g., Lindsey v. King, 769
F.2d 1034, 1040 (5th Cir. 1985) (“It was for the jury, not the prosecutor, to
decide whether the contents of an official police record were credible,
especially where-as here-they were in the nature of an admission against the
state's interest in prosecuting Lindsey. On such grounds as these, prosecutors
might, on a claim that they thought it unreliable, refuse to produce any matter
whatever helpful to the defense, thus setting Brady at nought. Such an
explanation is laughable, offering it an effrontery. It does not wash, nor do
we believe for a moment that the prosecutor could have been so simple-minded as
to have believed it would.”). Detective
Jose Viramontes, LAPD’s TMU, advised Lynch that he felt her drone email was a
“joke” and did not agree with the City Attorney that Lynch should be
arrested. These, and other, statements,
undermine the government’s case against Lynch and should have been memorialized
in a report. Lynch seeks access to
material documenting relevant conversations, notes, and other reports that may
seek to undermine the prosecution’s theory in this case and/or impeach their
witnesses. The newly discovered emails
between Stephen Gianelli and Vivienne Swanigan clearly impeach her credibility,
tend to support a theory of collusion, and Lynch is entitled to know the extent
and content of the City Attorney’s communications with this and other
individuals. That would include having
information as to when Stephen Gianelli began his communications with the City
Attorney of Los Angeles with respect to Lynch as well as all information they
disclosed to him regarding Lynch, their plans with respect to her, and any and
all requests for him to act explicitly in accordance with their direction and
in accordance with their needs and desires.
This is impeachment evidence regarding at least one of the City
Attorney’s proposed witnesses and it raises very serious issues and concerns.
The government has an
obligation to provide timely, pretrial disclosure. Because: the
due process obligation under Brady to disclose exculpatory information
is for the purpose of allowing the defense an opportunity to investigate the
facts of the case and craft an appropriate defense.Full disclosure should
be made well before the scheduled trial or hearing date unless, of course,
there is a good reason to do otherwise.
Advising defendant and the Court that there is no exculpatory evidence
and the prosecution does not have LAPD’s files and information is hardly a good
or legitimate reason. Defendant has a
right to timely disclosure so that she may properly prepare and present her
case. The less time Defendant has to
review Brady materials, the less opportunity there is for meaningful use of any
such evidence. This denial of Brady
material also wastes the resources of the taxpayer, the Court’s time, and is an
affront to all notions of decency and justice.
The Court specifically scheduled a Discovery hearing whereby the Defense
and prosecution could exchange discovery evidence. It is Lynch’s personal opinion that the City
Attorney has no respect for anyone and that includes the Court itself. They do, however, engage in questionable and
objectionable conduct and tactics including the farcical situation involving a
City Attorney filing documents under seal.
Lynch does not have the time to address that disturbing situation in the
instant matter, objects to this tactic, and intends to pursue its validity
legally at a later date. This clearly
prohibits Lynch from addressing the prosecutor’s conduct in State Bar
complaints as well as in complaints to the Criminal Grand Jury of Los Angeles,
District Attorney’s Justice Integrity Division, and the Department of Justice.
Early-in-the-case
disclosure is consistent with “the ABA standards for Criminal Justice, The
Prosecution Function, which directs that ‘disclosure of exculpatory information
is to be made at the earliest feasible opportunity’ and ‘as soon as practicable
following the filing of charges’” and which were favorably cited in Padilla v. Kentucky, 130 S. Ct.
1473, 1482 (2010) which stated that the ABA standards capture the “prevailing
norms of practice” and “are guides to determining what is reasonable.”
Given
the release of the Brady material,
Lynch could conceivably“abandon lines of independent investigation,
defenses, or trial strategies that it otherwise would have pursued,” Bagley,
473 U.S. at 682;
b. Lost access
to witnesses. Sykes, 897 A.2d at 777-78; see also United States v. Fisher, 106 F.3d 622, 634-35 (5th
Cir. 1997) (late disclosure deprived defendant the opportunity to depose the
author of a report that contradicted a government witness and to prepare
strategy and testimony appropriately); or simply have been unable to capitalize
on evidence that would have reinforced the defense’s theory of the case. Miller,
14 A.3d 1094; United States v.
Washington, 263 F.Supp.2d 413, 422 (D. Conn. 2003) (because of
belated Brady disclosure, “there was no opportunity for the defense to
weave [prosecution witness’] conviction into its overall trial strategy.”). This situation has caused Lynch, among other
things, to hold off on issuing subpoenas due to the fact that she is not in
possession of these materials and has not had an opportunity to review same. She may also need to amend her witness list
and provide additional evidence to the Court.
The key in fulfilling the due process mandate of Brady is the
“sufficiency, under the circumstances, of the defense’s opportunity to use the
[Brady information] when disclosure is made.” Miller v. United States, 14 A.3d 1094, 1109 (D.C. 2011); Perez v. United States,
968 A.2d 39, 66 (D.C. 2009) (“the due process obligation under Brady to
disclose exculpatory information is for the purpose of allowing defense counsel
an opportunity to investigate the facts of the case and, with the help of the
defendant, craft an appropriate defense.”).
The key to fulfilling the mandate of Brady is ensuring the
defense’s opportunity to use favorable information; but the defense cannot
meaningfully use favorable information if it does not know its source. As the Supreme Court explained in Smith v. Illinois, 390 U.S. 129,
131 (1968), “when the credibility of a witness is in issue, the very starting
point in exposing falsehood and bringing out the truth . . . must necessarily
be to ask the witness who he is and where he lives.” See also id. at 132
(internal quotation and citation omitted) (“Prejudice ensues from a denial of
the opportunity to place the witness in his proper setting and put the weight
of his testimony and his credibility to a test, without which the jury cannot
fairly appraise [the facts of the case].”).
Lynch believes, for example, that Sandra Jo Streeter’s upbringing is
relevant to her conduct. Her credibility
is clearly at issue and it is a fact that she has lied to two separate judges
and throughout Lynch’s trial.
The most effective mechanism for enforcing the due process
rights of criminal defendants and avoiding the needless expenditure of judicial
resources is to require strict compliance with the demands. A
pretrial Brady order, which Lynch is requesting, clarifies obligations
by providing the government with a checklist and/or a timetable to follow in
making its Brady disclosures. In
so doing, a pretrial Brady order promotes fairness and confidence in the
courts. The failure to timely and
completely disclose information that is favorable and material to a defendant
not only undermines the fundamental fairness of his particular prosecution and
the legitimacy of any conviction, but also calls into question the validity of
the criminal justice system as a whole.
Lynch has concurrently filed a Motion for Continuance with this document
and asks that the Court continue the January 7, 2013 hearing until these
matters are resolved. The information
the City Attorney has withheld may relate to witnesses, the investigation of
this matter, and aaffect a line of cross that may prove different if the
defense is fully aware of this information.
Lynch requires more time to investigate this information and incorporate
it into her defense. Defendant is
intentionally not addressing sanctions at this time because she does not want
to confuse issues. Few, if any, judges
appear interested in punishing the prosecution for their conduct. Sanctions are obviously considered collateral
to the proceeding itself. Perhaps, for
these reasons, prosecutors feel confident about presenting false statements and
eliciting perjured testimony in court; withholding Brady materials; engaging in
other forms of misconduct; and whining when people feel that they belong in
prison. There is nothing whatsoever to
deter them. By requesting sanctions, the
defense takes on an additional burden of proving bad faith. A showing of bad
faith is not required to establish a Brady violation. Brady,
373 U.S. at 87 (“[T]he suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.”); see also, e.g.,
Virgin Islands v. Fahie,
419 F.3d 249, 254 (3d Cir. 2005) (holding that dismissal with prejudice can be
appropriate sanction for a willful Brady violation). Lynch, at this time, simply wants to preserve
this issue. With respect to Brady
material, Lynch specifically asked Detective Jose Viramontes if he felt Sandra
Jo Streeter had psychiatric problems and suggested that he ask her if the
actual threat here relates to the IRS and FBI.
Given the fact that Detective Viramontes personally advised Lynch that
he would indeed ask Streeter that specific question, Lynch believes any and all
reports that would memorialize any such conversation would be highly material
and probative in value.
It has always
been understood—the inference, indeed, is one of the simplest in human
experience—that a party's falsehood or other fraud in the
preparation and presentation of his cause, his fabrication or suppression of
evidence by bribery or spoliation, and all similar conduct is receivable
against him as an indication of his consciousness that his case is a weak or
unfounded one; and from that consciousness may be inferred the fact itself of
the cause's lack of truth and merit. This
inference operatesagainst the whole mass of alleged facts constituting the
prosecution’s cause. The prosecution has
a pattern and practice of lying against Lynch, retaliating against her, and
evidence has now been revealed that the prosecution was actively encouraging
criminal conduct with respect to Lynch and advising a third party to possibly
engage in a cover up with respect to criminal conduct on their part – namely, a
legal conspiracy. Lynch has a legal
right to attack the quality of the City Attorney’s alleged investigation as
well as their communications with others about Lynch. It seems highly improbable, based on
Swanigan’s own emails to Stephen Gianelli, that the prosecution was unaware of
this Brady information that they appear to have deliberately concealed. No evidence potentially undermining a defense
is harmless. In Mesarosh v. United
States, 352 U.S. 1 (1956), the government acknowledged after trial
that informant/witness had given false testimony in several other proceedings
in different courts concerning the general subject matter of his testimony at
trial. Government argued that his testimony at defendant’s trial was truthful
and that there was sufficient other evidence. In rejecting this argument the
Court observed that the informant “by his testimony, has poisoned the water in
this reservoir, and the reservoir cannot be cleansed without first draining it
of all impurity.” Id. at 14.Lynch maintains that she is dealing with a
toxic sewer of corruption and not merely a poisoned reservoir. That is her personal opinion. “The government of a strong and free nation
does not need convictions based upon such testimony. It cannot afford to abide
with them.” Id. The Court ordered a new trial because “it cannot be
determined conclusively by any court that his testimony was insignificant
in the general case against the defendants.” (emphasis added). This is clearly relevant to statements made
by the prosecutor and witnesses at Lynch’s trial. In Alcorta
v. Texas, 355 U.S. 28 (1957), the defendant argued that he stabbed
his wife only after seeing her with another man. The other man, who was the
only witness, testified that he had no romantic relationship with the wife and
was just driving her home. The prosecutor knew about the romantic relationship
but told the man not to volunteer that information but to testify truthfully if
asked about it. His testimony, however, implied falsely that there was no
relationship. The prosecutor did not disclose that the witness had admitted to
the sexual relationship, which would have seriously corroborated the “heat of
passion” defense. That defense could have led to a far shorter punishment under
state law. The Court held that there was
indeed a due process violation because the testimony, even if not knowingly
false, certainly gave a “false impression” that prejudiced the defendant. Id.
at 31. While, prosecutor Sandra Jo
Streeter did her best while farcically attempting to rehabilitate Leonard Cohen
regarding his prior testimony that he and Lynch were in a “purely business
relationship” but lied because Lynch maintained otherwise, she failed to
address the fact that at the March 23, 2012 bail hearing, Cohen testified that
Lynch never stole from him – just his “peace of mind.” That would clearly have
been material to the issues in Lynch’s trial, particularly given Streeter’s
novel “sticky finger/exit strategy” closing argument. Another example of Streeter’s willingness to
permit false impressions to infect and permeate Lynch’s trial relate to an
email Cohen sent her with respect to Phil Spector at the outset of the trial (completely
undermining his testimony about this alleged incident and the District
Attorney’s version of events)and the fact that the IRS binder Streeter provided
Lynch’s trial lawyers contained no IRS holding with respect to Leonard Cohen’s
default judgment that Lynch is now challenging.
It seems self-evident that Robert Kory’s letter defending his client to
Agent Tejeda/IRS could not possibly be viewed as an official IRS holding. Furthermore, Streeter advised the jury that
Lynch fought with the District Attorney to bring charges against Cohen but
withheld the reasons the DA elected not to prosecute him. She also failed to advise the jury that Lynch
was extremely upset that the District Attorney elected not to investigate or prosecute
the criminal negligence that led to her son’s horrifying Whole Foods accident. Streeter seemed dazzled with Cohen’s
carefully crafted insane statement that Lynch accused him of being the author
of her misfortunes and Lynch continues to believe that Streeter, and other
prosecutors, were starstruck. That may
explain their deranged defense of indecent exposure and unconscionable sexual
harassment. In Napue v. Illinois,
360 U.S. 264 (1959), a key witness testified that he was offered no
consideration for his testimony. Even though prosecutor had actually promised
him consideration, the prosecutor did nothing to correct the false testimony on
that question. Witness had already been impeached on basis of public
defender. When government uses false
evidence or allows it to go uncorrected, the conviction “must fall under the
Fourteenth Amendment.” Id. at 269.
The government in Lynch’s case used false evidence to convict her an
permitted false information to go uncorrected.
Impeachment is just as important as any other evidence. “The jury's
estimate of the truthfulness and reliability of a given witness may well be
determinative of guilt or innocence, and it is upon such subtle factors as the
possible interest of the witness in testifying falsely that a defendant's life
or liberty may depend.” Id. at 269. The question is whether the
testimony “may have had an effect on the outcome.” Id. at 272. Without having the ability to review any and
all Brady material it is impossible for
Lynch to make such a determination at this point in time. How she would impeach a witness is clearly
not the same manner in which a Deputy City Attorney would. The fact that the City Attorney of Los
Angeles permitted extensive falsehoods to go uncorrected is extremely relevant
and material and Lynch believes all notes with respect to witness interviews
prior to, or during, her trial are relevant to the instant matter. “It is of no consequence that the falsehood
bore upon the witness’ credibility rather than directly upon defendant's guilt.
A lie is a lie, no matter what its subject, and, if it is in any way
relevant to the case, the district attorney has the responsibility and duty to
correct what he knows to be false and elicit the truth. . . . That the
district attorney's silence was not the result of guile or a desire to
prejudice matters little, for its impact was the same, preventing, as it did, a
trial that could in any real sense be termed fair." Id. at 269-270. All impeachment evidence is material. That would include, but is not limited to,
any promises given to Leonard Cohen with respect to the DA’s decision not to
prosecute him for the matters Lynch brought to their attention and the City
Attorney’s decision not to prosecute him for perjury during her trial.
In Giglio, the U.S. Supreme Court clarified
that the Brady disclosure obligation does not turn on the trial
prosecutor’s actual knowledge of the information. The Court imputed the promise
of the first prosecutor to the entire office, holding that the burden should be
placed on the Government to develop “procedures” to ensure that “all relevant
information” is communicated to each lawyer who handles any case. Id. at
154.The U.S. Supreme Court noted in Agurs
that “the prudent prosecutor will resolve doubtful questions in favor of
disclosure.” The U.S. Supreme Court
reiterated that the heart of the Brady inquiry is about fairness not bad
faith: Suppression violates constitution because of “character of the evidence,
not the character of the prosecutor.”Failure to disclose highly probative
evidence violates the constitution even if it was wholly inadvertent, and
failure to disclose trivial evidence is not a constitutional violation even if
prosecutor is trying to suppress a vital fact.
Lynch views all communications between the City Attorney’s office and
Stephen Gianelli as highly material evidence that has been suppressed. In Bagley,
the U.S. Supreme Court held that suppression of Brady evidence amounts to a
Confrontation Clause violation. The U.S.
Supreme Court also reaffirmed the holding of Giglio: “Impeachment
evidence. . . as well as exculpatory evidence, falls within the Brady rule.”In
fact, the Supreme Court was so concerned about the prejudice to the defense
from the suppression of this impeachment information it remanded the case for a
reassessment of materiality under the correct standard. The U.S. Supreme Court discarded the Agurs
distinction between specific request and general/no request situations.
Standard of materiality to show a Brady violation is the same: whether
“there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. A ‘reasonable
probability’ is a probability sufficient to undermine confidence in the
outcome.” Id. at 682. In Kyles
is the Court addressed the fact that the duty of disclosure extends to the
prosecution team. The Supreme Court
clarified that prosecutors are charged with knowledge of information in the
possession of police and that they have “a duty to learn of any favorable
evidence known to the others acting on the government’s behalf in a case.” Id.
at 437. At the Discovery hearing in the
instant matter, the anonymous prosecutor made two statements with respect to
Brady material. First, she stated that
there is “no exculpatory evidence.” Then, she advised the Court that they were
not in possession of LAPD’s file or records.
The fact that LAPD’s TMU concluded that Lynch should not be arrested is
obviously relevant and material. Their
notes with respect to same are therefore Brady
material. In Strickler v.
Greene, 527 U.S. 263 (1999),
the U.S. Supreme Court reiterated three elements of a Brady violation:
1) favorable evidence is 2) suppressed by government 3) resulting in
prejudice. The court also clarified that the prosecution has a “broad” duty of
disclosure pretrial that is not limited to that which establishes a Brady violation
post-trial. In Banks v. Dretke, 540 U.S. 668 (2004), the U.S. Supreme Court
held that defendants need not “scavenge for hints of undisclosed Brady
material.” Id. at 695. Lynch
is convinced that she is on a scavenger hunt.
Lynch remains unconvinced that defendants can reasonably rely on
representations of government officials. “A rule . . . declaring ‘prosecutor
may hide, defendant must seek’ is not tenable in a system constitutionally
bound to accord defendants due process.” Id. at 696. Lynch is convinced that she can rely on the
government’s conduct, however. In Cone v. Bell, 556 U.S.
449 (2009), the U.S. Supreme Court held that the suppressed
evidence, which amounted to a few statements that merely would have helped the
defendant establish that he was a serious drug user, demonstrated that evidence
need not be overwhelming in the slightest to be Brady material—it just
needs to speak to one of the many things that courts have found to be material
to mitigation.
CONCLUSION
The
U.S. Supreme Court has never pinpointed the precise time at which Brady
disclosures must be made. However, it
has long been settled that the government must disclosure the material “in time
for effective use at trial.” United States v. v. Smith Grading and Paving
Inc. 760 F.2d 527, 531 (4th Cir.)m cert denied. It is Defendant’s belief that the prosecution
has withheld Brady material in an attempt to obtain an advantage.
Defendant,
Kelley Lynch, in propria persona, and pursuant to the dictates of Kyles v.
Whitley, 115 S.Ct. 1555 (1995), Brady v. Maryland, 373 U.S. 83
(1963), United States v. Agurs, 427 U.S. 97 (1976), United States v.
Bagley, 473 U.S. 667 (1985), respectfully moves for
an entry of an order requiring the government to disclose and provide the
following specific information and material known or that with the exercise of
due diligence should be known to the government. This information is favorable to the defendant
on the issues of guilt or punishment, including impeachment information and
other material and evidence tending to discredit the government’s witnesses, in
addition to any other matters known to the government that may be exculpatory
or otherwise favorable to the defendant.
The timing of Brady
disclosures is critical. The Court
has an obligation to assure that [prosecutorial discretion in making Brady disclosures]
is exercised in a manner consistent with the right of the accused to a fair
trial.
__________________________________
Kelley
Lynch
EXHIBIT A
BRADY MATERIALS DEFENDANT REQUESTS
The following
documents and information regarding the witnesses and evidence related to this
case are requested:
a) the case numbers and names of the
prosecutions in which the prosecution witnesses were previously utilized as a
witness;
b) any
information or records concerning the decision not to prosecute any party in
connection with the Keith Roizman credible threat matter that LAPD’s TMU
investigated. These threats were
credible threats related to the District Attorney and City Attorney of Los
Angeles and are material as they were not prosecuted and are therefore relevant
to a selective prosecution with respect to Lynch. All evidence that similarly situated people
have not been prosecuted over actual credible threats or a violation of the
intent to annoy statute and the reason for not prosecuting those individuals.
c) any
statements made, information or document provided by a prospective government
witness that conflicts in part or in whole with: (1) the statement of another prospective
witness, (2) a prior statement made by the same government witness with regard
to the subject matter of the expected trial testimony of witness, or (3) any
other document or witness;
d) the name and
current whereabouts of any witness to the underlying events of this case whom
the government does not anticipate calling as a witness at trial and a copy of
any statement made by or summary of an interview with such a witness. This would include, but is not limited to,
Will Rivera (Streeter supervisor with whom Lynch lodged complaints re. her
trial misconduct), former City Attorney Carmen Trutanich, and current City
Attorney Mike Feuer;
e) information
concerning prior misconduct by all witnesses in the performance of his or her job
including any prior allegation that the individual retaliated against or
entrapped another person. This would
include, but is not limited to, all information with respect to Steve Miller’s
allegations that the government’s witnesses, Vivienne Swanigan and Hugo
Rossiter, retaliated against him;
(f) information
concerning misconduct by a government witness, including misconduct that
reflects a lack of candor, truthfulness or law-abiding character;
(g) all
information, records and transcripts which in any way indicate or reveal that
any government witness, in connection with this or any other case (including
the trial underlying this probation matter) has provided untruthful false,
misleading, incomplete, or inaccurate information or testimony to any state or
federal law enforcement officer or agency, any state or federal grand jury, any
state or federal trial court and/or any related preliminary proceeding;
(h) all
information and records indicating that any government witness may have
suffered from any mental or emotional disease, disorder, illness, or defect at
any time within the past five years;
(i) all
information and records indicating that any government witness has sought or
received treatment for any such mental or emotional disease, disorder, illness,
or defect at any time within the past five years;
(j) all
information and records indicating that the government witness may have used
cocaine, marijuana, another controlled substance, or alcohol in excess and/or
sought to receive treatment for any substance abuse problem (including alcohol)
at any time within the past five years;
(k) all Brady
material training manuals or guides used by the City Attorney of Los Angeles.
(l) all information and records related to how
the City Attorney of Los Angeles handles complaints in general and also specifically
with respect to Lynch. That would
include records of her phone calls to this office advising them that she does
not want to be copied in on emails sent by Stephen Gianelli, and others, with
Sandra Jo Streeter and Vivienne Swanigan copied in.
(m) all information, records, notes, and emails
related to Streeter, Swanigan, and other members of the City Attorney’s Office
with the District Attorney of Los Angeles, LAPD’s TMU, Stephen Gianelli, Ray
Lawrence, legal representatives of Ray Lawrence, and Susanne Walsh with respect
to Kelley Lynch.
(n) Evidence with respect to government witnesses
in Lynch’s 2012 trial that may aid in the impeachment of witness Sandra Jo
Streeter including, but not limited to, any and all evidence that Leonard Cohen
and his lawyers, Robert Kory and Michelle Rice, had previously concocted and
managed a fraudulent scheme against any other individual. In Mesarosh v. United States, 352 U.S.
1 (1956), the Supreme Court reversed the defendant’s conviction and remanded
for a new trial to allow the defendant to present previously undisclosed
evidence that the government’s key witness testified falsely in similar, but
unrelated proceedings.
(o) A copy of the IRS binder, including the IRS
holding Streeter discussed at a sidebar, and evidence supporting her repeated
statements that Leonard Cohen provided Lynch with the required tax
document. That would include any and all
1099s Leonard Cohen, as Lynch’s employer, was obligated to provide her and the
IRS for the year 2004.
(p) The defendant seeks a full record of
all considerations given to Leonard Cohen as a result of his cooperation in
Lynch’s 2012 trial. Such detailed
information and records are needed to demonstrate the motive of the witness and
are discoverable. Giglio v. United States; United States v. Williams, 954 F.2d
668 (11th Cir. 1992). The
witness’ motive to testify in favor of one party and against another is a
matter open to discovery and introduction into evidence. For example, a witness who has been promised
he will not be charged or prosecuted as, or a witness who hopes to gain more
favorable treatment in his own case, may have a reason to make false statements
because he wants to strike a good bargain with the government or would like the
government’s assistance with his matters.
This evidence is relevant and material to address Streeter’s false
statements and the elicited perjured testimony throughout Lynch’s 2012 trial.
(q) All information and
evidence with respect to Leonard Cohen’s 2005/2006 civil harassment restraining
order and information re. the filing of the Boulder civil order as domestic
violence order. That would include, but
is not limited to, any and all declarations filed in support of all Leonard
Cohen’s restraining orders against Lynch.
(r) Any report or notes written by Viramontes/LAPD re.
decision not to arrest Lynch over drone card; Viramontes’ communications with
Lynch together with any reports detailing discussions and/or plans to arrest
Lynch and the conveyance of those plans to Stephen Gianelli or any other
non-affiliated party to this matter.
(s) Any reports
– LAPD TMU – re. Lynch, and others, advising them that they were being
criminally harassed, as were members of Lynch’s family, friends, etc. This would include conversations with Detectives
Viramontes, Hessa, and Hancock.
(t) A copy of any
updated report sent to Agent Luis Tejeda/IRS and Agent Sopko/Treasury by
Viramontes as he advised Lynch he intended to do. She supplied him with their phone, fax, and
email information. Detective Viramontes
also recorded a conversation with Lynch which she feels is material and
relevant.
(u) The
Berkeley PD file and report, including any and all evidence that Lynch advised
the arresting officers that she had no idea that a restraining order existed
and could not imagine what court had jurisdiction over her.
(v) Any and all
evidence with respect to materials given to domestic violence counselor, Sandra
Baca, with respect to Lynch and information regarding her relationship as a
witness for the City Attorney in other matters.
(w) Evidence of any and all inconsistent
statements made by witnesses in this matter and during Lynch’s 2012 trial. That would include, but is not limited to,
Leonard Cohen’s testimony at the bail hearing and emails and/or evidence
regarding Leonard Cohen’s statements made to Streeter with respect to Phil
Spector and an alleged gun incident and the fact that Lynch was his personal
manager.
(x) The existence of
disciplinary records for prosecutor Sandra Jo Streeter, Vivienne Swangian, and
Hugo Rossiter. These three Deputy City
Attorneys are witnesses whose credibility is likely to be critical.
(y) An unredacted copy of all police reports and
all supplemental police reports in the possession of LAPD’s Threat Management
Unit with respect to Kelley Lynch. That
would include, but is not limited to, all notes of their meetings with Leonard
Cohen, all files and notes with respect to employees of the City Attorney’s
office vis a vis Lynch, and all files and notes with respect to any employees
of the District Attorney’s office vis a vis Lynch including DA Steve Cooley,
DDA Alan Jackson, and DDA Pat Dixon, and others.
(z) An unredacted copy of the case log or file
log (the chronological listing of police contacts regarding Kelley Lynch).
(aa) Copy of Arrest Warrant with respect to Kelley
Lynch’s March 1, 2012 arrest and Detective Viramontes or LAPD affidavits in
support of that arrest.
(bb) All audio taped and/or videotaped statements
and/or written statements of alleged victim Sandra Jo Streeter and her witness
colleagues, Vivienne Swanigan, Hugo Rossiter, and others.
(cc) All audio taped and/or videotaped and/or
written statements of any witness (whether the prosecution intends to call the
witness at trial or not) without redactions of names and addresses. That would include any member of the City
Attorney’s office with whom Lynch has filed a complaint. This would, of course, include Susan Schmitter
of the Domestic Violence Unit.
(dd) Copies of any policy statements for the
period January 1, 2012 through the present with respect to the City Attorney’s
complaint procedures, guidelines for dealing with self-represented individuals,
and guidelines for Brady materials.
(ee) All notes or reports related to Kelley
Lynch’s complaints to the City Attorney of Los Angeles with respect to
Streeter’s misconduct throughout Lynch’s trial, probable retaliation during her
appeal process, and with respect to the emails being sent to Sandra Jo Streeter
and Vivienne Swanigan copying Lynch, her sons and sister in and asking that the
City Attorney immediately have this activity – as it related to Streeter and
Swanigan – cease and desist. Those
messages were left for, among others, City Attorney Carmen Trutanich, City
Attorney Mike Feuer, and Streeter’s supervisor, Will Rivera.
(ff) Any documents, papers, books, accounts,
letters, photographs or tangible things which constitute or contain evidence
material to any matter involved in any action and which are in possession,
custody or control of the City or County of Los Angeles or any of its agencies.
(gg) All internal documents and information
related to complaints filed with the City Attorney of Los Angeles with respect
to matters related to Francis (Coyote) Shivers and the abuse of domestic
violence restraining orders, use of perjured testimony, and complaints related
to prosecutorial misconduct with respect to all prosecutors involved in Lynch’s
case and/or related to any and all cases that involve a celebrity including,
but not limited to, the Pauley Perrette/Francis Shivers and Alisa Spitzberg/Tig
Notaro cases.
(hh) Any and all evidence related to Ray
Lawrence’s harassment of a detective in Marin County together with his
statements regarding the possible need for a restraining order against Lawrence
and his Corporal’s emails to Ray Lawrence about this matter. The City Attorney has essentially used Ray
Lawrence as a witness against Lynch and is therefore obligated to investigate
their witness. Lynch would like to call
this detective as a witness. Ray
Lawrence has also accused this detective of being involved in some type of
insanity with respect to Hezboollah or Al Qaeda. Lawrence also mentioned that one of his
colleagues at Kaiser Permanente actually hacked into this detective’s email
account.
Kelley Lynch
In Propria Persona
SUPERIOR
COURT OF THE STATE OF CALIFORNIA
COUNTY
OF LOS ANGELES
PEOPLE OF THE STATE OF
CALIFORNIA Case No. 2CA04539
Plaintiff
Vs.
KELLEY LYNCH Date
of Hearing:
Time
of Hearing:
Department : 47
Defendant
ORDER
HAVING
CONSIDEREDTHE DEFENDANT’S ARGUMENTS WITH RESPECT TO HER BRADY MOTION AND
ATTACHED EXHIBITS, THE COURT ORDERS:
The
City Attorney of Los Angeles to provide Lynch with the requested Brady
materials by _______________________________.
DATED:
__________________________________
Commissioner
Elizabeth Harris
