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Leonard Cohen's Plan to Use Fraud Restraining Orders Against Kelley Lynch & LA Superior Court's Assignment of a Dating Relationship to A Sexual Assault/Harassment Victim

Leonard Cohen's premeditated plan to use fraud restraining orders against Kelley Lynch was raised in Natural Wealth's lawsuit against Cohen/Kory for extortion, witness tampering, etc.

145. When these tactics to draw Lynch into his extortion scheme proved futile, Cohen and Kory – according to Lynch – turned to far more aggressive means to obtain her cooperation.  Indeed, as heard by other witnesses, Cohen and Kory vowed to "crush her," and planned to use restraining orders and other means to prevent her from serving as a credible witness regarding both Cohen's affairs and in regard to the scheme into which they had tried without success to draw her.

Natural Wealth Real Estate, Inc., et al. v. Leonard Cohen, et al. United States District Court, District of Colorado, Civil Case No. 05-cv-01233-LTB-MJW

LA Superior Court issued, without any jurisdiction to do so, a fraud domestic violence order to Cohen.  Lynch was not served and/or notified of same.  The sexual harassment issue was addressed with Robert Kory, Cohen's lawyer, in 2005; has been extensively addressed with numerous courts (including on September 1, 2015 at a hearing on the fraud order), and is now an issue on appeal.  LA Superior Court's argument that an individual should have argued something they were unaware of (the fraud domestic violence order) is preposterous.  However, Lynch is aware that a celebrity with motive and liability on the horizon is a very special type of litigant with LA Superior Court and the government actors who continue to target her.  In fact, Leonard Cohen and his representatives just pick up the phone and summon LAPD's celebrity unit.  They then routinely lie to them.  Sexual assault, sexual harassment, indecent exposure and masturbating in front of one's female personal manager is not "dating."  

Michelle Rice's Scribd account is evidence of the lengths Kory & Rice have gone to target Kelley Lynch for their client, Leonard Cohen.  They have benefited financially from their work.  

https://issuu.com/michellel.riceesq./docs/286138362-transcript-of-hearing-9-1

LA Superior Court [Via It's Celebrity Justice Program] Assigns Dating Relationships to Victims of Sexual Harassment, Sexual Assault & Indecent Exposure: See Leonard Cohen's Fraudulent Domestic Violence Order Issued Without Due Process

DECLARATION OF KELLEY LYNCH

I, KELLEY LYNCH, declare:

1.        I am a citizen of the United States who currently resides in Los Angeles, California.   I am over the age of 18 years.  I have personal knowledge of the facts contained in this declaration and if called upon to testify I could and would testify competently as to the truth of the facts stated herein.

2.         I worked as singer-songwriter Leonard Cohen’s personal manager, and in other capacities, from approximately April 1988 through October 21, 2004.  During this period of time, I was continuously subjected to sexual harassment, sexual assault, threats with respect to my job, and other wholly unprofessional and, at times, shocking conduct.  This declaration will detail what Los Angeles Superior Court, LAPD, the City Attorney of Los Angeles, and others, view as a statutory required brief, intimate “dating relationship” in the State of California.  

3.         From approximately 1984 through April 1988, I worked as legendary music industry attorney Marty Machat’s legal assistant.  Leonard Cohen, Phil Spector, Peter Gabriel, and many other illustrious artists were clients of Machat & Machat’s.  I first met Leonard Cohen at some point in 1985.  I distinctly recall that he was in a very troubled period psychologically and it involved his relationship with photographer Dominique Issermann.  While I had spoken to Cohen continuously on the phone, I had never actually met him.  He detailed his psychological state, relationship with Dominique Issermann, and actually informed me that he felt homicidal and was forced to lock himself in his house in Montreal.  As I did not know Leonard Cohen, I found this situation rather alarming and alerted Mr. Machat who expressed concern.  It was my understanding that Cohen had, at another point, also suffered some form of meltdown, was walking around New York high on meth, and carrying a loaded pistol which Marty Machat was forced to confiscate from him.

4.         One day, Cohen came into our offices and we briefly discussed a book of poetry on my desk, “First Thought, Best Thought” by Chogyam Trungpa Rinpoche, a renowned Tibetan Buddhist teacher.  Cohen borrowed the book and returned it to me several days later.  In the interim, Marty Machat sent me over to the Royalton Hotel where Leonard Cohen was staying for approximately one week.  I believe Cohen was in town on a matter related to his recording of “Take This Waltz” which was included in a 1986 tribute to Federico Garcia Lorca entitled “Poetas en Nueva York” or “Poets in New York.”  Marty Machat asked me to deliver papers to Cohen at the hotel.  I walked over, was invited upstairs, and knocked on the door.  Leonard Cohen opened the door, pulled me inside, threw me violently up against the wall, shoved his tongue down my throat and hand down my pants.  I found the situation shocking and asked “What’s the matter, Leonard?  Don’t you know how to be friendly with women?”  This question appeared to startle Cohen who quickly apologized and took the documents from me.  I returned to Marty Machat’s office and discussed the incident with Mr. Machat and other individuals in our offices.

4.         Leonard Cohen spent approximately one week in New York City at this time.  While disturbed by the incident, Marty Machat asked me to attend to Cohen’s needs while in town.  Mr. Machat was traveling to England at that time.  Cohen spent the next seven days glued to the chair next to my desk.  We went out for lunch, he apologized profusely, and I generally found him to be pleasant and intelligent.  The incident was not mentioned again and soon forgotten. 

5.         I did not really have all that much interpersonal interaction with Leonard Cohen until, after Mr. Machat’s death in April 1988, when he hired me as his personal manager.  From approximately 1984 through April 1988, I met Leonard Cohen possibly a handful of times.  We continued to speak on the phone and became rather friendly.  He was the Machat & Machat client I was closest with in many ways.  I do recall Cohen being in New York at another period when he asked me to phone Allen Ginsberg, a friend of mine, to arrange a meeting.  I did and Cohen traveled to the village to meet Allen Ginsberg at his flat.  He found a note on the door informing him that Gregory Corso was in town and he was unable to meet with Cohen.  This infuriated Leonard Cohen.  Another time, I visited Cohen at the Mayflower and he informed me that he had run into Joe Cocker.  Cocker was evidently drunk and amiable.  Cohen invited him up to his room and recounted an incident where Cocker was rifling through Cohen’s coat pockets, believing it was his own coat, looking for a package of cigarettes.  For some reason, this incident amused Cohen.  I believe this would have been sometime in 1987 as Jennifer Warnes was by then a client of the Machat firm and I distinctly recall the firm’s involvement in the use of the Warnes/Cocker duet in the film Dirty Dancing.  Phil Spector’s song, “Be My Baby,” was also used in the film and soundtrack.  Also, during this visit, I recall that Leonard Cohen spent time with a friend of mine who happened to be in town visiting.  At no time were Cohen and I in a brief, intimate statutory “dating” relationship.  

6.         Apart from these two encounters, I really do not recall meeting Cohen personally during this period of time (1994 until March 1988) until March of 1988 when Cohen flew into town.  The reason for this visit was the fact that Marty Machat was dying of cancer.  In January 1988, I attended a Buddhist event in Colorado and when I returned learned that Marty Machat was diagnosed with lung cancer.  Cohen flew into pick up certain papers and documents.  He also had some personal financial matters to resolve with Marty Machat.  Our encounters during this period were limited to meetings in Machat & Machat’s offices and, on one occasion, I shared a cab with Cohen uptown.  I may have joined him for dinner.  It was a very disturbing moment in time that involved my being asked to witness Marty Machat’s Last Will & Testament and visit with him while he was dying.  On this day, Cohen was visiting Mr. Machat’s companion, Avril Giacobbi, and I lived on the upper west side so we shared a cab uptown together.  We parted ways outside Mr. Machat’s upper east side apartment building.  These encounters evidently led the City Attorney of Los Angeles to inform jurors that Cohen and I were in a brief, intimate relationship in the mid-80s.  LAPD’s Threat Management Unit evidently felt this was a “sexual relationship.”  I have no idea what a “sexual relationship” is and take great offense at LAPD’s position that I was in a “sexual relationship” with Cohen or anyone else for that matter.  I have no idea what a “sexual relationship” is, was not in one with Cohen, we were not in a “dating” relationship, sexual harassment and assault are not “dating,” and I was Leonard Cohen’s personal manager.  I feel I have been victimized by misogynists over this and other situations related to Leonard Cohen.  He personally seemed to believe that transforming me into his ex-lover made the fall out between us, over federal tax and IRS matters, far more salacious and scandalous.

7.         I will now detail – generally – the conduct of Leonard Cohen with respect to me, a female personal manager and colleague – for approximately seventeen years.  The City Attorney of Los Angeles evidently believes this conduct, including indecent exposure and Cohen’s jealous rage over my friendship with Oliver Stone and other men, is a statutory required brief, intimate, “dating” relationship meant to “annoy” Leonard Cohen.  LA Superior Court has, in one of its finer moments with respect to me, actually assigned me a secret “dating” relationship with a man who sexually harassed, sexually assaulted, and exposed his penis to me for years.  This is unconscionable governmental conduct in all its brazen glory.  Furthermore, in conjunction with the prosecution over a violation of a restraining order, which I was told by Boulder Combined Court expired on February 15, 2009, I was prosecuted for annoying Leonard Cohen over his own conduct and with respect to federal tax matters that were blatantly false.  I have now been forced to address this with Internal Revenue Service and am dealing with a division of IRS with respect to the entirely perjured and fraudulent legal pleadings submitted to LA Superior Court (Case No. BC338322) and ultimately used to file/amend Cohen’s tax returns, apply for/obtain fraudulent tax refunds, and further used to defend Leonard Cohen with respect to the allegations that he committed criminal tax fraud.  Given the fact that I am in possession of a memorandum from Robert Kory, stating that Cohen and his representatives failed to report $8 million in income with respect to one company alone, it seems impossible to believe that any intelligent person would conclude that the federal tax controversy is a “ruse.”  I am also not in receipt of the IRS required tax and corporate information that the City Attorney argued that I had in my possession. 

8.         On March 19, 1988, Marty Machat passed away.  At that time, Leonard Cohen hired me as his personal manager.  As his “I’m Your Man” world tour would begin on April 5, 1988, and there were many details to work out, I was extraordinarily busy.  I was also responsible for negotiating new publishing agreements, sorting through agreements and clarifying contracts for Cohen, while he and his personal family friend and lawyer, Herschel Weinberg, sorted through issues related to Cohen’s off-shore accounts, confusion with respect to certain contracts being “inadvertently” assigned to corporate entities, Cohen’s green card, and so forth.  In the early 90s, I worked for Jules Zalon.  I therefore personally introduced Cohen to this firm and while on tour, but in New York City, Leonard Cohen personally met with Mr. Zalon’s partner, Peter Shukat who he in turn hired.

9.         On April 5, 1988, the “I’m Your Man Tour” kicked off in Germany.  The tour would continue through November 1988 with two different stops in New York City.  I distinctly recall, during the first stop (July 1988), Cohen personally meeting with Peter Shukat.  As Cohen was only in town for two days, and was performing, we did not spend a considerable amount of time together.  The next time Cohen was in New York City was November 16, 1988 for his appearance at the Beacon Theatre.  I recall his being extremely busy, attended the band’s rehearsal and concert, and accompanied Cohen when he met with Herschel Weinberg.  At this time, I was dating my ex-husband, Douglas Penick, and was most certainly not interested in any type of romantic or intimate relationship with Cohen.  Cohen, for his part, was still involved to some degree with Dominique Issermann.  He was also seeing a woman from Venezuela.  I did visit Los Angeles for the tail end of band rehearsals for the “I’m Your Man” tour and, at that time, visited with Phil Spector who also resided in Los Angeles.  While I stayed with Cohen during this trip, we were not involved in a statutory required brief intimate dating relationship or any other type of “intimate” relationship.  In fact, I recall Roscoe Beck visiting Cohen’s home the night I visited Phil Spector.  He was there when the car picked me up.  This did infuriate Cohen but, at that point, his jealous rages had not begun.  

10.       At some point in December 1989 or January 1990, my husband, son, and I relocated to Los Angeles.  Leonard Cohen specifically requested that I relocate which I did.  This move resulted in Douglas Penick and I quickly parting ways as he despised Los Angeles and our relationship fell apart.  Leonard Cohen and I began to spend a tremendous amount of time together, traveled together, and were seemingly close friends.  That would turn out to be an entirely fraudulent relationship.  Cohen’s misconduct towards me began almost immediately after I relocated to Los Angeles.  My offices were temporarily located in the flat below his.  Cohen was dating Rebecca DeMornay and I became an issue in their relationship.  Cohen explained that he informed DeMornay that I was his “soul mate” and this disturbed her.  Working in this type of environment became extremely uncomfortable and unprofessional.  Cohen’s daughter would actually move into these offices.  According to Cohen, due to the relationship issues with DeMornay, it was time for me to find a permanent business office which I did.  And, at that time, we renegotiated the terms of my compensation.  As Cohen lived upstairs from my office, from approximately 1990 through late 1994 or early 1995, I would frequently meet with him over coffee in the mornings, join him for lunch, and we were together throughout the day.  

11.       In 1990, Douglas Penick and I broke up, he left Los Angeles for Colorado, and I became involved with record producer, Steve Lindsey.  Cohen introduced me to Lindsey who was initially hired to produce the track “Be For Real” for Cohen’s “The Future” album which was released in 1993.  By 1992, I was pregnant with my younger son, Ray Charles Lindsey.  At the time of Ray’s birth, Cohen and DeMornay were on Hydra, Greece and Cohen and I had never been involved with one another in any way, shape or form.  In fact, at times, he informed people that this was a corporate resolution – that he and I would never undermine our relationship by blurring the lines between professional business conduct, a familial friendship, and/or anything that would faintly resemble an “intimate” relationship per California’s statute.  Ray Charles Lindsey was born on December 18, 1992 and Leonard Cohen was his godfather which is utterly and thoroughly appalling, particularly based on his role in the coordinated custody matter that destroyed my sons’ lives.  This was based upon fraudulent and perjured legal documents and one of LA Superior Court’s infamous default judgments.  That particular matter is over, my son has reached the age of 18, and my sons can no longer be used as weapons against me – although the City Attorney targeted me over the coordinated default judgment custody matter and my older son John Rutger Penick’s horrifying Whole Foods accident where he had his fingers ripped off by a meat grinder he was not trained or qualified to use.  He was, however, trained to use a cash register.  The City Attorney has argued that these issues “annoy” Leonard Cohen.  That would include, but is not limited, to his exposing his penis to me routinely and the fact that he falsely accused me of having sex with Oliver Stone – to my younger son’s father – in order to coordinate a custody matter that would crush me.  This is the true nature of the folksinger.  The City Attorney also informed the Court that I created stories about Cohen allegedly molesting his daughter.  I most certainly did not.  Cohen and his representatives attempted to obfuscate it with my position that any adult stranger, such as Gianelli, who attempted to lure my then minor son into privately communicating with him online should be viewed as a sexual predator.  The City Attorney also willfully used the latter incident against me when, in fact, my email related to strangers – not Cohen – targeting my sons including Ray Charles Lindsey who was a minor at that time.  I will note for this Court that I repeatedly contacted LAPD, City Attorney, and District Attorney about this matter.  Instead of taking action, they targeted me over it.  Please see Ann Diamond’s declaration, attached hereto, as it details the molestation allegation that Leonard Cohen’s daughter made publicly about her father.  Ann Diamond is a former friend of Cohen’s who actually was his “lover” in the late 70s, around the time that Cohen’s album, produced by Phil Spector, was released.  I personally found Lorca Cohen’s allegations – that her father molested her -to be extremely disturbing at the time and I am the individual who had my brother-in-law, an attorney in Canada, ask Ann Diamond to remove the statements from her blog because they upset Lorca Cohen.  Ann Diamond immediately removed the comments.  Nevertheless, as I have been falsely accused of making these statements, I feel it is appropriate to address the facts and the truth.  Exhibit A:  Declaration of Ann Diamond.

12.       At some point in late 1994, Cohen was releasing his book “Stranger Music” in Canada and the United States.  I accompanied Cohen on his book tour.  During this time, he informed me that he was breaking up with Rebecca DeMornay for me.  I was horrified and his conduct, including insisting that I have sex with him and threatening my job when I refused, was becoming increasingly problematic.  For example, at some point in 1996, I became the personal manager for Adam Cohen, Leonard Cohen’s son.  I accompanied him on a press junket in Canada.  While there, I also met with Corky Laing, drummer for the band “Mountain” who was working with Alliance, a company interested in pursuing intellectual property asset deals.  The night Adam Cohen and I planned to fly home, I met with Corky Laing.  The meeting ran a bit late and this, together with traffic, cause us to miss our plane.  When I returned home, Cohen was in a jealous rage over Corky Laing.  This happened repeatedly including with both Oliver Stone, a friend of mine, and Paul Burger, head of Sony Canada and Sony Europe.  At some point after the release of a tribute album that I put together for Cohen, and served as executive producer for, Cohen and I traveled to Toronto for the Canadian album release.  Cohen became furious that our friend, Nancy Southam, located him in Canada, traveled to the Four Seasons in Toronto, and this evidently interfered with his so-called romantic plans for the two of us.  We traveled home separately, as I had business in New York, and by the time I arrived home, Cohen was again in a rage, furious that I refused to have sex with him in Toronto, and fired numerous people.  He, of course, also threatened my job.  Things would normally calm down after a period of time but tended to remain tense for months.  I repeatedly received horrendous letters and faxes from Cohen that related to these incidents.  

13.       In or around 1994, I met Oliver Stone through mutual friends.  We were quite close with Tibetan Buddhist teacher, His Holiness Kusum Lingpa, and ultimately assisted His Holiness with his Los Angeles center.  My friendship with Oliver Stone disturbed Leonard Cohen.  He was undergoing a difficult period in time, was drinking far too much, and informed me that he was consuming a tremendous amount of “prescription meth.”  His personal behavior was at times entirely intolerable and I became alarmed by it.  I recall one evening at dinner with Cohen and Oliver Stone where Cohen ended up on the floor prostrating to me and telling Oliver Stone that I was his “teacher” and generally embarrassing himself and me.  I asked Cohen to switch seats with me so that he was next to Oliver Stone and I was seated next to my friend, Richard Rutowski.  

14.       From approximately January 1995 through December 1998, Leonard Cohen spent time on Mt. Baldy at Sasaki Roshi’s Zen Center.  As a patron, Cohen was provided a guest cabin but was frequently in Los Angeles as Roshi often taught at Rinzai Ji, his center in Los Angeles.  At a certain point, I served on Roshi’s Board of Directors and also became quite close with him.  At no time during this period was Leonard Cohen in a rigorous Buddhist retreat.  He was working on material for his forthcoming studio album, for which he received an advance and was contractually obligated to deliver, and used the retreat as a backdrop for interviews and a documentary called “Spring of 1996.”  Leonard Cohen was frequently in Los Angeles and lived one block from my office.  This period of time was exceptionally difficult with respect to the sexual harassment.

15.       During the Mt. Baldy phase, from approximately January 1995 through December 1998, Leonard Cohen began dictating a book that he planned to call “The Autobiography of Leonard Cohen by Kelley Lynch.”  He wanted to copy the format used for “The Autobiography of Alice B. Toklas by Gertrude Stein.”  I was sitting at Cohen’s kitchen table and, because I take excellent shorthand notes, he simply began dictating a portion of this planned book.  I was absolutely shocked when he began dictating about his sexual encounters with Rebecca DeMornay.  He went into excruciating details about what it was like when she would climax sexually.  He also routinely provided me with other excruciating details about his sexual adventures with other women.  Leonard Cohen would hire hookers and evidently liked one young Korean girl, Number 11, in particular.  He would provide me with details, such as his disdain for her alcohol based perfume, his insistence upon her showering first, and tell me in great detail about their sexual encounters.  It was intolerable.  One night when Ray was quite young, Cohen phoned my home continuously at about 10 PM.  He had rented a room at the Bel Age Hotel, Los Angeles and demanded that I come over.  I hung up the phone, refused to answer the continuous ringing, and he was furious the next day.  This was the type of ongoing conduct I was exposed to.  He would attempt to manipulate the situation by gossiping and pretending something else was going on.  For instance, he might inform third parties that Steve Lindsey was jealous of our relationship when in fact there was friction between them.

16.       Leonard Cohen’s kitchen was connected to his bedroom by a small room that served as his laundry room.  I would frequently sit next to the window at his kitchen table.  Cohen constantly walked in, wearing nothing but boxer shorts, with his penis exposed.  At times, he would massage his penis while standing in front of me.  In one memorable encounter, Cohen asked if he could give me an enema.  At other times, Cohen would ask me to come over, leave the front door open, and I would wait for him in the kitchen while he finished bathing or showing.  Cohen frequently called me into the bathroom, where he would soak in the tub.  He frequently demanded that I read legal and business documents while he bathed.  At these times, he also exposed his penis to me.  It got to the point where I could no longer stand being alone with him but, as I was his personal manager, supporting my children and parents, I had no choice.  In 1999, I did begin a greeting card company with the hopes of resigning as his personal manager.

17.       I was also forced to visit Cohen alone in his cabin on Mt. Baldy.  I distinctly recall my last visit to Mt. Baldy.  Cohen had a two room cabin.  In one room was a bed, night table, and possibly some other small furniture.  In the other room, Cohen had a desk, recording unit, fax, computer, and so forth.  The bathroom was off the bedroom directly opposite the bed.  On this occasion, I was standing in the bedroom as the door to the cabin was in that room.  Cohen exited the bathroom absolutely naked, threw me onto the bed, pinned me down, and demanded that I have sex with him.  He was extremely aggressive and appeared capable of violence.  

18.       On another occasion, Steve Lindsey found a letter Cohen had written me.  He became extremely upset and told me that he felt Cohen was in love with me.  I recounted this incident for Cohen who became increasingly paranoid about it.  A day or two later, Lindsey was visiting me at my offices.  Leonard Cohen showed up and Lindsey was furious and left.  Cohen called Lindsey who informed him that he was playing with Ray and was unable to speak.  This caused further problems with me and Cohen.  

19.       As another example, one night when we were all at one of Adam Cohen’s concerts in Los Angeles, Lindsey, Cohen, Sharon Robinson (Cohen’s background singer and co-writer who knows Lindsey quite well) and I were all present.  Lindsey refused to say hello to Cohen.  This alarmed Cohen as he was forced to make up some type of story to explain it away for Sharon Robinson.  

Cohen’s obsessive behavior with me began to infest other relationships.  For example, my relationship with Paul Burger, former President of Sony Europe, and a very close friend of mine.  Cohen would attempt to extract information from Adam Cohen about men I spoke to and I distinctly recall Adam Cohen advising me that his father questioned him about my interactions with Paul Burger during our business trip to Marbella, Spain.  I was forced to ask Adam Cohen not to provide any information about me to his father because it became almost impossible to work with Cohen by then.  

20.       This behavior towards me continued up until the moment we parted ways.  In October 2004, not long before we parted ways, Cohen called and asked me to stop over.  I walked over and sat down next to him at his desk.  He was working on his computer.  He said “I want to show you something.  I’m typing in the words shit, fuck, piss, cunt” and the next thing I knew Cohen was reviewing images of people online defecating on one another.  I was truly horrified in part by what my younger son could view online.  I returned to the office, explained to my mother that I would never again visit with Cohen alone, and recall going home to speak to my sons about online sex.  That conversation led me to conclude that children were indeed exposed to potentially outrageous information and/or images online.

21.       This type of conduct in no way resembles a statutory “dating relationship.”  It is sadistic, twisted, and deviant conduct.  The position of the City Attorney, as well as the lies and false statements the prosecutor conveyed to jurors, was and remains unconscionable.  California, as the Appellate Court noted in Oriola v. Thaler, has not adequately defined a “dating relationship” but I feel confident that even the most extreme definition of “dating” would not include the conduct I was subjected to.  The new California definition, created after the Oriola decision, is insufficient as well.  I am now dealing with a government assigned “dating relationship,” granted to Cohen without my being notified of same, without the statutory required relationship – after a long history of sexual abuse by Cohen.  This is based upon a fraudulent restraining order issued in Colorado – that was NOT domestic violence – without findings due to the fact that I found the proceedings disturbing and informed the Court that Cohen and his lawyers were “insane.”  Leonard Cohen and I did not have a “dating relationship” that involved “frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.”  I assume the latter may relate to sex workers but it could also relate to a female colleague who served as Cohen’s personal manager.  Clearly, our work was reliant upon financial considerations regardless of LA Superior Court’s position that I should have provided free services to Cohen.  This statute, as it applies to this situation, is not only unconstitutional but it is vile, revolting, and should sicken people.  The fact that the State of California receives VAWA funds for assigning people this type of relationship is equally abhorrent.  This information is also transmitted into government databases for which there are apparently no remedies when and if fraudulent information is transmitted to, for example, CLETS or the Domestic Violence databases.

I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct.

This declaration is executed on this 15^th day of November 2016 in Los Angeles, California.

                                                                        SIGNED

                                                                       

                                                                        ______________________________________

                                                                        Kelley Lynch

Kelley Lynch's Motion Barring the Prosecution from "Misstating" Federal Tax Laws, Etc. - Re. Leonard Cohen's Fraudulent Domestic Violence Order (issued to a man who sexually harassed Lynch for years)

MEMORANDUM OF POINTS & AUTHORITIES

            Kelley Lynch respectfully moves this Court to prohibit the People from engaging in improper and/or blatantly false argument or other misconduct with respect to federal laws, compliance with same, federal and state constitutional issues (including with respect to the Supremacy Clause and First Amendment of the United States Constitution), and any related misconduct, before the jury at her trial. The entire 2012 trial record is replete with false statements, perjured testimony, and blatant misstatements of law related to federal tax laws and compliance with same.  As the prosecution is relying on that conviction, Kelley Lynch asks this Court to prevent a similar set of circumstances from arising with respect to the proceedings in this case.

BACKGROUND

            At issue in this case are two unconstitutional conflicting state restraining orders obtained by deceased singer-songwriter Leonard Cohen against his former personal manager Kelley Lynch:  a 2008 order (civil harassment non-domestic violence) issued in Colorado (Boulder Combined Court Case No. 2008 C 776) and a 2011 order (domestic violence) issued in California (Los Angeles Superior Court Case No. BQ033717).  The orders have been used to obstruct justice with respect to federal tax matters, sabotage Internal Revenue Service and other tax authorities, interfere with civil litigation, pursue sham criminal prosecutions, and to discredit, crush and silence Kelley Lynch.

            Leonard Cohen’s pre-meditated plan to use restraining orders to crush Kelley Lynch and discredit her as a witness was first raised with the U.S. District Court in Colorado in 2005.  This information, overheard by “other witnesses,” was submitted to the Colorado federal court approximately six months prior to the issuance of the first Los Angeles Superior Court fraudulent restraining order against her.  It is important to note that the 2005 Los Angeles Superior Court restraining order was a civil harassment order – not a domestic violence order.  See Natural Wealth Real Estate, Inc., et al. v. Leonard

Cohen, et al. United States District Court, District of Colorado, Civil Case No. 05-cv-01233-LTB-MJW:

145. When these tactics to draw Lynch into his extortion scheme proved futile, Cohen and Kory – according to Lynch – turned to far more aggressive means to obtain her cooperation.  Indeed, as heard by other witnesses, Cohen and Kory vowed to "crush her," and planned to use restraining orders and other means to prevent her from serving as a credible witness regarding both Cohen's affairs and in regard to the scheme into which they had tried without success to draw her.

ARGUMENT

In support of this motion, Ms. Lynch submits the following:

1.      Kelley Lynch is charged with 17 misdemeanor offenses, including alleged violations of a

protection order issued to Leonard Cohen in Case No. BQ033717.  This is the California domestic violence order.  The Colorado order is not a domestic violence order and the Boulder Combined Court maintained exclusive modification jurisdiction.

Lynch is also charged with allegedly making repeated telephone calls with intent to annoy Leonard Cohen’s lawyers, Michelle Rice and Robert Kory.  

And finally, Lynch is charged with violation of a domestic violence related order (PC 136.2) issued to Robert Kory during these proceedings without minimal due process of law.  The alleged violation occurred when an individual, who was not Lynch, lifted a February 26, 2017 email she sent to the IRS Commissioner’s Staff from her blog, altered the content, and allegedly transmitted same to Robert Kory.  See Exhibit A:  LA Superior Court Docket, attached hereto and made a part hereof.

2.      The prosecution’s past and current misstatements of law continue to violate Kelley Lynch’s

Sixth Amendment right to a fair trial.  These misstatements of law violate other constitutional rights as well.  Misstating the law may constitute misconduct.  People v. Hill (1998) 17 Cal.4th 800, 819; People v. Bonin, 47 Cal.3d 808, 254 Cal.Rptr. 298, 765 P.2d 460 (1989).

Prosecutorial Misconduct

3.      “ It is improper for the prosecutor to misstate the law generally, and  particularly to

attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.”  People v. Hill, supra, 17 Cal.4th at pp. 829–830.

A Fair Trial

4.      The prosecutorial misstatements of law will deprive Lynch of a fair trial.  The U.S. Supreme

Court has defined a “fair trial” as “a trial resulting in a verdict worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434 (1995). 

5.      Under both California and federal law, prosecutorial misconduct renders a trial

“fundamentally unfair” and is a violation of due process.  The prosecutor’s misstatements were not inadvertent or isolated.  They infected the 2012 proceedings and have been used once again in this case.  These misstatements of federal and other laws had substantial and injurious effect and/or influence on the 2012 verdict.  During debriefing some of the jurors informed Lynch’s public defender that they wanted to hear from Internal Revenue Service.  One juror informed Lynch’s public defender that he felt “sorry” for Leonard Cohen due to DCA Streeter’s statements that one unidentified corporate account had only $150,000.00 in it and presented it to the jury as Leonard Cohen’s personal property.  See Exhibit B:  Declaration of Kelley Lynch, attached hereto and made a part hereof.

The Prosecution’s Prior & Ongoing Misconduct Violates the Federal Constitution & Is Misconduct Under California State Law

6.      A prosecutor's misconduct constitutes a federal constitutional violation when it

comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.”  People v. Hill (1998) 17 Cal.4th 800, 819; People v. Thomas (1992) 2 Cal.4th 489 , 7 Cal.Rptr.2d 199.  Conduct by a prosecutor is misconduct under state law when “it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.”  People v. Linton (2013) 56 Cal. 4th 1146, 1194-1195, 158 Cal.Rptr. 3d 521; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305; Hill, supra, 17 Cal.4th at p. 819.) In this regard, “what is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury

to the defendant. When . . . the claim focuses on comments made by the prosecutor before the jury, a court must determine at the threshold how the remarks would, or could, have been understood by a reasonable juror.”  People v. Benson (1990) 52 Cal.3d 754, 793.

7.      As in Hill, supra, 17 Cal.4th 800, in this case (including throughout the 2012 proceedings

which are being used as a prior conviction against Lynch), the prosecutor engaged in a pattern of conduct which included misstating the facts relating to the evidence and witnesses' testimony, misstating federal tax laws and compliance with same, and making improper references to alleged facts outside the record.  The prosecution also argued continuously that Leonard Cohen’s conduct was Lynch’s intent to annoy him. 

8.         Public prosecutors owe a special duty to the justice system.  See, e.g., National District Attorneys Association, The Prosecutor’s Deskbook 3-4 (Healy & Manak, eds. 1971) (as voice of community, prosecutors must have unquestioned integrity); American Bar Association, Criminal Justice Standards § 3-1.2(b) (4th Ed. 2015) (“[T]he primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.”).

9.         Improper prosecutorial argument does not merely offend the Constitution.  It may be so offensive as to raise a double jeopardy bar to retrial.  See, e.g., United States v. Jorn, 400 U.S. 470, 485 (1971).  For this reason, what might not otherwise be constitutional error should result in reversal where the prosecutor is specifically warned pretrial of potential error and where the error “might have affected the outcome of the trial.”  United States v. Agurs, 427 U.S. 97, 104 (1976) (emphasis added); see also Chaney v. Brown, 730 F.2d 1334, 1339-40 (10th Cir. 1984).

Misleading the Jury as to the Law

10.       A prosecutor may not mislead the court or jurors by misstating the law at any stage of the proceedings.  See People v. Hill, supra, 17 Cal.4th at 829; People v. Bell (1989) 49 Cal.3d 502, 538.)  See also California Rules of Professional Conduct, rule 5-200 (B): “in presenting a matter to a tribunal, a member [¶] (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.”  See also  Caldwell v. Mississippi, 472 U.S. 320 (1985), (prosecutors misstated the law when arguing to the jury); Mooney v. Holohan, 294 U.S. 103 (1935), (prosecutors knowingly used perjured testimony).  Nevertheless, the prosecution mislead the jurors throughout the 2012 proceedings.

The following areas of potential bad faith, misstatement of facts and law, as well as any prosecution misconduct with respect to same are improper and must be prohibited. 

MISSTATEMENTS OF THE LAW

It is misconduct to misstate the law.  E.g., in People v. Mendoza (1974) 37 Cal.App.3d 717, 726-727.  See Exhibit C:  Schedule of Misstatements of Federal Tax Laws throughout the 2012 proceedings and Relevant Federal Tax Laws, attached hereto and made a part hereof.  The People have continued to mislead this Court with respect to federal tax laws, compliance with same, and other relevant and material issues throughout these proceedings. 

FEDERAL LAWS IMPLICATED BY THESE PROCEEDINGS

THE UNAMBIGUOUS SUPREMACY CLAUSE

The premise of federal supremacy (also known as preemption) is elementary.  See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211 (1824) (noting that state laws contrary to the laws of Congress are invalid because “in every such case, the act of Congress . . . is supreme; and the law of the State though enacted in the exercise of powers not controverted, must yield to it”); Mary Ann K. Bosack, Cigarette Act Preemption—Refining the Analysis, 66 N.Y.U. L. Rev. 756, 761 (1991) (“When Congress legislates in an area within its constitutional grant of power, the supremacy clause mandates that federal law displace state law.”).  When a state law conflicts with a federal law, the Supremacy Clause provides a resolution: federal law trumps state law.  U.S. Const. art. VI; Bosack, supra note 1, at 761.

The Supremacy Clause is a clause within Article VI of the U.S. Constitution which dictates that federal law is the “supreme law of the land.”  This means that courts in every state must follow the Constitution, laws, and treaties of the federal government in matters which are directly or indirectly within the government's control. Under the doctrine of preemption, which is based on the Supremacy Clause, federal law preempts state law, even when the laws conflict.

The federal government has broad powers under the Supremacy Clause to create, regulate, and enforce the laws of the United States. The concept of federalism, or that of federal power, has a long-standing history dating back to the late 1700's, during the time in which the nation's founding fathers signed the U.S. Constitution. Among those powers, the federal government has certain express (or “enumerated”) powers which are specifically spelled out in the U.S. Constitution, including the right to regulate commerce, declare war, levy taxes, establish immigration and bankruptcy laws, and so on.

Not only does the federal government have express powers under the U.S. Constitution, it also has implied powers, or powers not specifically mentioned in the Constitution. This was the decision in the landmark Supreme Court case of McCulloch v. Maryland, 17 U.S. 316 (1819).  For example, the Constitution does not expressly mention the right to privacy, however, these rights can be inferred by the Constitution itself, or from the later amended Bill of Rights.

Whether express or implied, federal law will almost always prevail when it interferes or conflicts with state law, except in circumstances where the federal law is deemed unconstitutional, or where the Supremacy Clause does not apply. The federal government has broad powers with respect to issues related to discrimination claims, immigration challenges, federal taxation, and many others.

United States Supreme Court cases have established that state law is preempted under the Supremacy Clause in three circumstances. First, Congress can define explicitly the extent to which its enactments preempt state law. See Sprietsma v. Mercury Marine, 537 U.S. 51, 62-3 (2002). Second, state law is preempted where it regulates conduct in a field that Congress intended the federal government to occupy exclusively. Such an intent may be inferred from a “scheme of federal regulation ... so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,” or where an Act of Congress “touches a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.”  Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Finally, state law is preempted to the extent that it actually conflicts with federal law. Thus, the Court has found preemption where it is impossible for a private party to comply with both state and federal requirements, see, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963), or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. See United States v. Union Central Life Insurance Co., 368 U.S. 291 (1961) (I.R.C. ' 6323(f) preempted state law requiring that NFTL contain a description of the taxpayer’s property). See generally Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941)(if preemption exists, state law cannot even complement federal law).

The Supremacy Clause, “secures’ federal rights by according them priority whenever they come in conflict with state law.”  Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 441 U. S. 613. Pp. 493 U. S. 107-108.

Supremacy Clause Evolution

Modern preemption doctrine derives from Supremacy Clause jurisprudence, which has evolved from the nation’s founding to present day.  6 See Mary J. Davis, Unmasking the Presumption in Favor of Preemption, 53 S.C. L. Rev. 967, 972–75 (2002) (noting the “long history” of preemption rooted in the Supremacy Clause and the expansion of preemption doctrine following “the unprecedented legislative activity of the post-Depression era”); see also Verizon Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 642 (2002); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 108 (1989); Shaw, 463 U.S. at 96 n.14; Ex parte Young, 209 U.S. 123, 149–50 (1908); Gibbons, 22 U.S. at 1, 211.

RESOLVING CONFLICTING

STATE & FEDERAL LAWS

When faced with conflicting state and federal law, the Court need only to turn to the Supremacy

Clause to find that federal law controls:  This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound

thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.  See U.S. Const. art. VI, cl. 2; G. Edward White, Revisiting the Ideas of the Founding, 77 U. Cin. L. Rev. 969, 975–76 (2009).

The combination of a Supremacy Clause and a Supreme Court to enforce it brought federal preemption into the fabric of American jurisprudence.  See generally Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304 (1816) (asserting jurisdiction over a state court decision involving a federal question and holding that a federal treaty preempted state action); White, supra note 38, at 980 (“Through the idea of enumerated federal powers, reserved state powers, and the Supremacy Clause, the drafters of the Constitution said, in effect, to state legislatures: we will offer you a model of government designed to function, and, by the way, if it passes laws that conflict with your laws, you will have to obey them.”). Additionally, the Supremacy Clause ensured a federalist model for the new nation because it operated in conjunction with Article I of the Constitution, which conferred power to appoint Senators on state legislatures. See Bradford R. Clark, Constitutional Compromise and the Supremacy Clause, 83 Notre Dame L. Rev. 1421, 1432 (2008). Small states had a guarantee, therefore, that the laws the federal government passed, which were supreme by definition, were made with state participation. See id.

In 1824, Chief Justice John Marshall recognized in Gibbons v. Ogden that a state law contrary to a federal law must yield to its federal counterpart because “the framers of our constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it” by insertion of the Supremacy Clause in the Constitution.  22 U.S. at 210–11. The Supremacy Clause is enforceable in state as well as federal courts. Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 507 (1954) (“The supremacy clause, of course, makes plain that if a state court undertakes to adjudicate a controversy it must do so in accordance with whatever federal law is applicable.”). Indeed, until federal question jurisdiction was established in 1875, state courts handled the bulk of Supremacy Clause issues. See Peter L. Strauss, The Perils of Theory, 83 Notre Dame L. Rev. 1567, 1588 (2008).

The preemption doctrine under the Supremacy Clause gained full bodied status in the twentieth century when expansion of Congress’s power under the Commerce Clause brought greater numbers of state laws into conflict with federal statutes, requiring the Court to establish a nuanced way to handle this sensitive area of federalism.  See Mary J. Davis, Unmasking the Presumption in Favor of Preemption, 53 S.C. L. Rev. 967, 972–75 (2002) (noting the “long history” of preemption rooted in the Supremacy Clause and the expansion of preemption doctrine following “the unprecedented legislative activity of the post-Depression era”); see also Verizon Md. Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 642 (2002); Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 108 (1989); Shaw, 463 U.S. at 96 n.14; Ex parte Young, 209 U.S. 123, 149–50 (1908); Gibbons, 22 U.S. at 1, 211.

The Court, broadly interpreting congressional purpose in the early twentieth century, often found federal legislation to “occupy the field,” thus preempting state laws.  Id. at 974.

All preemption cases, whether preemption is asserted prospectively or defensively, turn on the effect of the Supremacy Clause. See Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (noting that in light of the power of the Supremacy Clause “the purpose of Congress is the ultimate touchstone in every pre-emption case”).

The Framers inserted the Supremacy Clause into the Constitution to give explicit voice to the idea of federalism—that the nation would be comprised of sovereign states free to make their own laws, except that if those laws conflicted with federal law then federal law would control.  White, supra note 38, at 978–79.  The Supremacy Clause constitutionalized federal supremacy.  See id.

As stated herein:  Federal preemption is based on the Supremacy Clause of the United States Constitution, which provides that federal law is the supreme law of the land. Preemption can occur expressly, through the plain words of a federal statute, or can be implied, as when a court discerns that Congress intends to occupy an entire field of regulation, or when a court concludes that a state law conflicts with a federal purpose or the means of achieving that purpose. A federal statute can be preemptive on its face or as applied.

There are four species of federal preemption:  express, conflict, obstacle, and field.   Conflict preemption arises when simultaneous compliance with both state and federal law is impossible.  Obstacle preemption arises when state law is an obstacle to the accomplishment and execution of the full purposes and objective of federal law.  Bronco v. Wine Co. v. Jolly (2004) 33 Cal.4^th 943, 955.  The state laws being used to charge and prosecute Kelley Lynch, including alleged violations of restraining orders and/or the intent to annoy, are preempted by federal law.  The State of California has in effect criminalized compliance with federal tax and corporate laws.  Congress clearly intended to preempt state law with federal tax laws and compliance with same.  This case involves all four species of federal preemption.  State law has been preempted here because:  1) the law’s subject is one exclusively within the power of the federal government; 2) there is a conflict between the state and federal laws such that simultaneous compliance with both is impossible; and, 3) the state laws impedes in many ways achieving the goals of the federal laws and policies underlying them.   Furthermore, the People are not pursuing any legitimate government purpose, including with respect to the State of California itself, by promoting non-compliance with tax laws, the reporting of income and filing of individual and/or corporate tax returns, and/or condoning tax evasion and fraud.  This is not a legitimate function and/or purpose of government.

VAWA IS INAPPLICABLE TO CORPORATIONS,

FEDERAL TAX MATTERS PARTNERS, CORPORATE

OFFICERS, & THE CORPORATIONS AT ISSUE DO NOT HAVE INJUNCTIONS

In Scripps Health v. Marin, a California Court of Appeals held that Section 527.6, related to

harassment restraining orders, “applies only to natural persons.  Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333, 85 Cal.Rptr.2d 86; Diamond View Limited v. Herz (1986) 180 Cal.App.3d 612, 618-619, 225 Cal.Rptr. 651. “The Legislature intended to provide employers with the remedy of injunctive relief to protect their employees by preventing unlawful violence where it is reasonably likely such unlawful violence may occur in the future.”  Scripps Health v. Marin, supra, 72 Cal.App.4th at p. 335, 85 Cal.Rptr.2d 86. 

Leonard Cohen has not functioned as Kelley Lynch’s employer since approximately October 21, 2004, did not seek injunctive relief as an employer, and no corporation at issue has obtained an injunction related to itself, its officers, any federal tax matters partner, and/or any employee whatsoever.  That is true for all corporations at issue herein whether or not they have minimal or no ties whatsoever to California.  

Furthermore, there is no protected relationship in federal VAWA that would apply to a corporation, its officers, a federal tax matters partner, and/or any employee of same.  Further issues related to corporations at issue herein with no ties to California have been implicated by the prosecution’s novel arguments.  Finally, although since November 2004 Lynch has only seen Cohen a handful of times during court appearances, according to this Court, the nature of their relationship changed on May 25, 2011.  Los Angeles Superior Court has merely elected to assign Lynch a dating relationship with a man who sexually harassed, sexually assaulted, and exposed himself to Lynch routinely for years.

DEPRIVATION OF PROPERTY RIGHTS

VIA A DOMESTIC VIOLENCE ORDER

ISSUED WITHOUT MINIMAL DUE PROCESS OF LAW

The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.”  The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states.

Due process requires that the procedures by which laws are applied must be evenhanded, so that individuals are not subjected to the arbitrary exercise of government power.  Thus, where a litigant had the benefit of a full and fair trial in the state courts, and his rights are measured, not by laws made to affect him individually, but by general provisions of law applicable to all those in like condition, he is not deprived of property without due process of law, even if he can be regarded as deprived of his property by an adverse result. Marchant v. Pennsylvania R.R., 153 U.S. 380, 386 (1894).

Exactly what procedures are needed to satisfy due process, however, will vary depending on the circumstances and subject matter involved.   Hagar v. Reclamation Dist., 111 U.S. 701, 708 (1884).  “Due process of law is [process which], following the forms of law, is appropriate to the case and just to the parties affected. It must be pursued in the ordinary mode prescribed by law; it must be adapted to the end to be attained; and whenever necessary to the protection of the parties, it must give them an opportunity to be heard respecting the justice of the judgment sought. Any legal proceeding enforced by public authority, whether sanctioned by age or custom or newly devised in the discretion of the legislative power, which regards and preserves these principles of liberty and justice, must be held to be due process of law." Id. at 708; Accord, Hurtado v. California, 110 U.S. 516, 537 (1884).

 One of the basic criteria used to establish if due process is satisfied is whether such procedure was historically required in like circumstance.

The Requirements of Due Process.—

Although due process tolerates variances in procedure "appropriate to the nature of the case,”  Mullane v. Central Hanover Trust Co., 339 U.S. 306, 313 (1950).], it is nonetheless possible to identify its core goals and requirements. First, “procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”   Carey v. Piphus, 435 U.S. 247, 259 (1978). “Procedural due process rules are shaped by the risk of error inherent in the truth-finding process as applied to the generality of cases.” Mathews v. Eldridge, 424 U.S. 319, 344 (1976).

Thus, the required elements of due process are those that “minimize substantively unfair or mistaken deprivations” by enabling persons to contest the basis upon which a State proposes to deprive them of protected interests.   Fuentes v. Shevin, 407 U.S. 67, 81 (1972). At times, the Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one's interests even if one cannot change the result.  Carey v. Piphus, 435 U.S. 247, 266-67 (1978); Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980); Nelson v. Adams, 120 S. Ct. 1579 (2000) (amendment of judgement to impose attorney fees and costs to sole shareholder of liable corporate structure invalid without notice or opportunity to dispute).

The core of these requirements is notice and a hearing before an impartial tribunal. Due process may also require an opportunity for confrontation and cross-examination, and for discovery; that a decision be made based on the record, and that a party be allowed to be represented by counsel.

Notice & A Hearing

Notice. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”  Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1950). See also Richards v. Jefferson County, 517 U.S. 793(1996) (res judicata may not apply where taxpayer who challenged a county's occupation tax was not informed of prior case and where taxpayer interests were not adequately protected).

The notice must be sufficient to enable the recipient to determine what is being proposed and what he must do to prevent the deprivation of his interest.  Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970).  Ordinarily, service of the notice must be reasonably structured to assure that the person to whom it is directed receives it.  Armstrong v. Manzo, 380 U.S. 545, 550 (1965); Robinson v. Hanrahan, 409 U.S. 38 (1974); Greene v. Lindsey, 456 U.S. 444 (1982).

Hearing.   “Some form of hearing is required before an individual is finally deprived of a property [or liberty] interest.”   Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “Parties whose rights are to be affected are entitled to be heard.”  Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863).  This right is a “basic aspect of the duty of government to follow a fair process of decision making when it acts to deprive a person of his possessions. The purpose of this requirement is not only to ensure abstract fair play to the individual. Its purpose, more particularly, is to protect his use and possession of property from arbitrary encroachment …”  Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972). See Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-71 (1951) (Justice Frankfurter concurring).  Thus, the notice of hearing and the opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.”   Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

There is a formidable body of constitutional and California law precluding the summary deprivation of property without due process, i.e., without notice and hearing. That law was forged in the context of overreaching creditor’s remedies in which alleged debtors found themselves summarily deprived of the use of their property without deliberative court proceedings.  See Randone v. Appellate Department (1971) 5 Cal.3d 536 [96 Cal. Rptr. 709, 488 P.2d 13] [prejudgment attachment procedure unconstitutional without notice and hearing]; Blair v. Pitchess (1971) 5 Cal.3d 258 [96 Cal. Rptr. 42, 486 P.2d 1242] [same for claim and delivery]; see also Sniadach v. Family Finance Corp. (1969) 395 U.S. 337 [23 L. Ed. 2d 349, 89 S. Ct. 1820] [summary attachments without notice and hearing unconstitutional].)” Gale v. Superior Court (2004) 122 Cal.App.4th 1388, 1393.

The actions of the prosecution in this case have served to deprive Kelley Lynch of substantial property rights that would be represented in the tax documents Leonard Cohen and the corporations he controlled have not as yet provided her.  False and fraudulent information, conveyed to jurors by the prosecution, with respect to federal tax matters appeared in news accounts of the 2012 proceedings.  On April 18, 2012, the LA Times wrote an article that contained the following statements:  “Attorneys for Lynch argued throughout the trial that Lynch's messages contained legitimate requests for tax documents. Cohen and his attorneys, however, said Lynch has long been in possession of documents she requested.”  On January 13, 2017, DCA Streeter informed this Court, after blatantly misleading jurors throughout the 2012 proceedings, that the federal tax matters that remain at issue were Lynch’s prior “excuse.”  Federal tax laws, and compliance with same, are not an “excuse.”  See Exhibit D:  January 13, 2017 Hearing Transcript, attached hereto and made a part hereof.

The following quote was taken from the January 13, 2017 preliminary hearing in this case. 

MS. STREETER: So the issue she talked about, the tax return, is the same issue she raised in the prior

case when she was convicted, and it's a issue she's been raising since the year 2000, Your Honor. There is no litigation between she and Mr. Rice -- Miss Rice and Mr. Kory.

The prosecution’s conduct, both past and present, has “so infected the trial [and all proceedings] with unfairness as to ... [be] a denial of due process” under the 14th Amendment to the U.S. Constitution.  Donnelly v. DeChristophero (1974) 416 U.S. 637, 643 [questionable argument by the prosecution that the defense wanted the jury to find guilt on a lesser deemed cured by a specific corrective jury instruction.]

CONCLUSION

In the present situation, federal law explicitly preempts state law.  Additionally, Congress intended that the federal government exclusively occupy the field at issue.  Finally, there is indeed an actual conflict with and obstruction of federal law.  Kelley Lynch contends the prosecution has committed misconduct in violation of her state and federal constitutional rights to confrontation, due process, and a fair trial. 

For these reasons, Kelley Lynch respectfully moves this Court to enter an order granting the motion and prohibiting the People from making improper – or blatantly false - opening or closing statements or other improper remarks in this case. 

Dated:  16 November 2017                                         Respectfully submitted,

                                                                                    ____________________________________

                                                                                    KELLEY LYNCH, in Propria Persona

                                                                                   

                                                                                                                                   

                                                           

EXHIBIT A

LA SUPERIOR COURT DOCKET
CASE NO. BQ033717

Case Number:  BQ033717
LEONARD NORMAN COHEN VS KELLEY ANN LYNCH

Filing Date:  05/25/2011
Case Type:  Civil Petition - TRO/Dom Violence (General Jurisdiction)
Status:  Pending

Future Hearings 

None

Parties

COHEN LEONARD NORMAN - Petitioner

LYNCH KELLEY ANN - Respondent

RICE MICHELLE L. - Attorney for Petitioner

Documents Filed (Filing dates listed in descending order)

04/04/2012 Request-Copies

05/25/2011 Order-Reg. of Out-of-State DV [Domestic Violence]
Filed by Petitioner