Kelley Lynch
1754 N. Van Ness Avenue
Hollywood, California
90028
323.331.4250
kelley.lynch.2013@gmail.com
In Propria Persona
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
THE PEOPLE OF THE STATE OF CALIFORNIA Misdemeanor Complaint
Plaintiff Case
No. 6CJ03685
Related
Case: BQ033717
vs.
KELLEY LYNCH Hearing
Date: TBD
Department: TBD
Defendant Time:
TBD
NOTICE OF MOTION AND MOTION
TO RECUSE
THE LOS ANGELES CITY
ATTORNEY’S OFFICE
TO THE CLERK OF THE
ABOVE-ENTITLED COURT, TO THE CITY ATTORNEY OF LOS ANGELES, AND TO THE ATTORNEY
GENERAL OF THE STATE OF CALIORNIA:
PLEASE TAKE NOTICE that as soon as the matter
may be heard, defendant KELLEY LYNCH, in Propria Persona, will and hereby does
move the court for an order disqualifying the entire City Attorney’s Office
from prosecuting this case and asks this court after considering the statement
of facts, argument, declarations, exhibits, and all files before this court
(including the 1385 Motion) to order an evidentiary hearing concerning the
facts alleged. Lynch asks this Court for
one of the following remedies: recuse the
entire City Attorney’s Office and/or, in the alternative, recuse the “Family
Violence Unit” from prosecuting this matter and, because of the grave conflicts
of interest, egregious prosecutorial misconduct that has infested all
proceedings involving Lynch, either refer the case to the Attorney General of
California or dismiss all charges, entirely false, and prohibit the prosecution
from relitigating them. Lynch also asks
this Court for a determination that the California domestic violence order is
formally null and void due to the death of Leonard Cohen.
This motion is based on this notice, Penal Code
section 1424, the statement of facts, declarations, and evidence incorporated
herein from the Section 1385 Motion, the attached declarations of Kelley Lynch
and Paulette Brandt, points and authorities, the court’s file, and on such
other matters as may be presented to the court at the time of hearing.
Dated: 23 February 2017 Respectfully submitted,
KELLEY LYNCH
In Propria Persona
MEMORANDUM
OF POINTS & AUTHORITIES
INTRODUCTION
When Kelley Lynch was
preparing her Section 1385 Motion (which the Court later characterized as a
demurrer to the complaint), it did not occur to her that a motion to recuse the
entire City Attorney’s Office was necessary.
This is because, although she addressed the egregious prosecutorial
misconduct that infested the 2012 proceedings, she did not realize that the misconduct
would continue to manifest in the present proceedings. Throughout the three hearings Lynch has
attended in this case to date, the prosecutors have fabricated charges and
allegations, routinely lied, deceived the Court, used the original domestic
violence order as a pre-filing restraint and restraint upon Lynch’s speech and
lawful conduct, and/or falsely accused her of violating a restraining order
that did not extend to attorneys of record in Colorado. The prosecutors have also provided Lynch with
four binders of “evidence” that she has been advised contains the same unauthenticated
emails printed out over and over again, sometimes hundreds of times. It was not until the actual arraignment
hearing that Lynch understood that the false charges brought against her with
respect to alleged restraining order violations related to Robert Kory and
Michelle Rice, Leonard Cohen’s former attorneys and paid witnesses. Robert Kory and Michelle Rice do not have
restraining orders against Lynch. They
are not part of any restraining order deceased singer-songwriter Leonard Cohen
managed to obtain against Lynch – blatantly fraudulent and all issued without
affording Lynch due process of law.
But after attending
these hearings, being forced into an abusive meeting with Sandra Jo Streeter
and her colleague, reviewing the Complaint, hearing Paulette Brandt’s
summarization of the contents of the so-called evidence binders, reviewing the
alleged evidence attached to the Complaint itself (including communications
with the Colorado Court), and analyzing other information Sandra Jo Streeter
provided her, Lynch recognized the need for a recusal motion. Lynch is completely innocent. The charges are false. And, at no time has she possessed an “intent
to annoy” Robert Kory, Michelle Rice, and/or Kory & Rice, LLP. On the contrary, co-conspirators Kory &
Rice, who are absolutely not “victims,” have the motive and specific intent to
crush and destroy Lynch while benefiting from their unlawful conduct which
involves retaliation and the ongoing pursuit of false criminal
proceedings. After all, they are aware
that their conduct is viewed as “litigation protected” and seemingly condoned
by countless courts in numerous jurisdictions.
Due to the fact that every prosecutor Lynch has been forced to confront
has blatantly lied to the Court, submitted fraudulent legal pleadings and
perjured declarations, suborned perjury, and engaged in the misconduct which is
ongoing, this motion to disqualify should apply to the whole office. In the alternative, Lynch asks the Court to specifically
recuse all members of the “Family Violence Unit.” The order Leonard Cohen obtained against
Lynch in Colorado, issued without findings or an evidentiary hearing where
Lynch would NOT be apprised of the allegations against her, was not a domestic
violence order. Another possible remedy
for the egregious ongoing prosecutorial misconduct and the entirely false
charges would be to dismiss all charges in their entirety and prohibit the
City Attorney of Los Angeles from relitigating this case. Lynch also maintains that there are very
probable issues related to double jeopardy attached to these proceedings and
conflicting enforcement proceedings in two separate states.
STATEMENT
OF FACTS
This statement of facts
incorporates herein the Section 1385 Motion, together with all exhibits and
declarations attached thereto, Lynch filed asking this Court to dismiss the
criminal proceedings in the furtherance of justice. The primary issue in that motion was
egregious prosecutorial misconduct and an entirely fraudulent trial record. This statement of facts also incorporates
herein the declarations and exhibits attached hereto and made a part
hereof. One exhibit contains a summary
of the misconduct in this case as Lynch addressed the prior misconduct with
respect to her 2012 trial extensively in the Section 1385 Motion. Those facts have not changed.
There is an appearance
of a conflict in that prosecutor Sandra Jo Streeter, during the retaliatory
probation violation in Case No. 2CA04539, decided to step into the dual role of
victim/witness using preposterous allegations related to an email Lynch sent to
FBI and DOJ concerning Los Angeles prosecutors’ use of false threat scams to
prosecute innocent people. The conflict
with Sandra Jo Streeter and her colleague, Vivienne Swanigan, also involves a
situation with Bay Area lawyer Stephen Gianelli who continues to represent
Leonard Cohen’s interests while harassing Lynch and others.
There is a further
conflict that involves the Phil Spector case, District Attorney of Los Angeles,
and Los Angeles Police Department.
LAPD’s Threat Management Unit works for the City Attorney and District
Attorney of Los Angeles and they are eternally conflicted with respect to Lynch. Lynch’s Section 1385 motion addressed the
egregious prosecutorial misconduct throughout all proceedings related to her
2012 prosecution. At no time did Lynch
knowingly or willingly violate any protection order in either Colorado or
California. She testified that she
understood the Colorado order expired.
During her trial she was unaware of the newly created California
domestic violence order. Lynch believes
that was entirely intentional. She also
maintains that Leonard Cohen and his representatives, Kory and Rice, filed the
order fraudulently as a domestic violence order to confront allegations that
Leonard Cohen sexually harassed, sexually assaulted, and exposed himself to his
female personal manager for a period of 20 years. From approximately late February 2009 through
April 2014, the Boulder Combined Court advised Lynch and others, including
Paulette Brandt, that the permanent Colorado order expired on February 15,
2009. Lynch was not aware of the newly
issued California domestic violence order, that is not a registration of the
Colorado order but a fraudulent registration and unlawful modification of that
order, until the Spring of 2013. As
Lynch was not present for the ex parte hearing in the Colorado case, she was
unaware of the allegations and did not know if Leonard Cohen testified that she
was his lover. Lynch and Cohen were
never in any type of statutory required dating relationship. Cohen’s testimony with respect to this issue
was nothing other than a perjury confession.
The Colorado Court had no jurisdiction over domestic violence. Leonard Cohen has no standing as a protected
party in accordance with California or Colorado’s domestic violence statutes,
acts, and/or the federal Violence Against Women’s Act, etc. On April 10, 2014, Lynch received written
confirmation from the Boulder Combined Court that the Colorado order was not a
domestic violence order. She also
received, for the first time, a copy of the Verified Motion, entirely
fraudulent, and the Boulder Combined Court’s database print-out showing the
following information: the temporary
order was vacated on September 2, 2008, a motion to dismiss was entered on
January 12, 2009; and, an order expired on February 15, 2009. Therefore, the Boulder Combined Court misled
Lynch and others for years. That does
not relate to Lynch’s conduct and she should not be held accountable for the
conduct of others. Lynch was not
notified, served, or provided an opportunity to be heard with respect to the
domestic violence order issued on May 25, 2011.
The issue of domestic violence has never been before a court, there have
never been any findings of domestic violence, and domestic violence has never
been submitted to any jurors. In fact,
during Lynch’s 2012 trial, the juror verdict forms clearly stated that the
order Lynch allegedly violated was the September 2, 2008 Colorado order
although the prosecutor was quite clear that it was the 2011 California
domestic violence order. It is
irrelevant if Cohen and his representatives argue that registering an
out-of-state order fraudulently is mandatory in California using domestic violence
form DV-600. That is blatantly
false. VAWA does not apply to
non-domestic violence civil harassment orders.
There is no uniform act that applies to non-domestic violence civil
harassment orders. The fact that Los
Angeles Superior Court has no remedies for its own outrageous errors is
entirely disturbing.
The conflicts of
interest and ongoing misconduct are indeed so grave in nature as to render it
entirely probable that Lynch will never receive a fair trial, particularly
given the fact that the entire 2012 trial record is replete with fraudulent
misrepresentations, false statements, and perjured testimony or the fact that
fraudulent domestic violence orders have been transmitted into local, state,
and federal databases. Other conflicts
in this case involve the use of Lynch’s 2012 trial to promote the careers of
former City Attorney Carmen Trutanich and former DDA Alan Jackson, both of whom
were running for office at that time.
The Phil Spector trial was a very important issue during that campaign. In fact, Phil Spector was featured on the
voter ballot. David Mamet had recently
publicly stated that he felt Phil Spector had been railroaded and that
generated extensive publicity – as did his film about the trial which changed
many people’s minds about Phil Spector’s guilt.
It seemed glaringly obvious, during the 2012 trial, that Phil Spector,
former DA Steve Cooley, and former DDA Alan Jackson were centerpieces of the
proceedings. The proceedings permitted
Leonard Cohen to take the stand, under the pretense that Lynch accused him of
perjuring himself in the Spector case (after he advised her for 20 years that
Phil Spector never held a gun on him and his stories were merely “good rock ‘n
roll” stories), and presenting public testimony, and further fabrications
(which included statements about Lana Clarkson), about his entirely fabricated
and embellished gun story involving Phil Spector. Leonard Cohen now has three versions of his
gun story about Phil Spector before LA Superior Court. The version he testified to in the 2012
proceedings completely contradicts the version Spector’s prosecutors used in
their motion in limine and, if Mick Brown (UK Telegraph) was correct after
reviewing the transcript, which were presented to the Spector Grand Jury. Those transcripts were unsealed by Judge Larry
Fidler and Mick Brown reviewed them while writing his book about Phil Spector.
An additional conflict
has arisen with respect to Lynch and the Los Angeles City Attorney’s Office due
to the fact that she formally notified the City and County of Los Angeles, and
will notify the State of California, that she intends to file lawsuits with
respect to these proceedings. These
proceedings are nothing other than the means with which to discredit Lynch,
destroy her life, and distress or intimidate her friends, family, and witnesses. That issue was initially addressed in the Natural Wealth lawsuit filed with the
U.S. District Court in Colorado alleging that Leonard Cohen and his lawyer,
Robert Kory, engaged in extortion, were involved in a legal conspiracy, and
further engaged in acts of witness tampering, witness intimidation, bribery of
a witness, and other outrageous conduct.
Lynch was and remains that witness.
Lynch will file a request for judicial notice involving that case in the
near future.
Finally, Lynch and the
City Attorney of Los Angeles are even further conflicted due to the fact that
she has publicly asked IRS, FBI, and DOJ to investigate her entire trial, these
proceedings, all lies and perjury related to federal tax matters, a potential
quid pro quo between Leonard Cohen (who was represented by former DA Ira
Reiner) and due to the fact that former DA Steve Cooley who publicly aligned
themselves in targeting Lynch during her 2012 trial. The City Attorney and District Attorney of
Los Angeles worked together on Lynch’s 2012 prosecution, Phil Spector was a
highlight of Lynch’s trial, and Steve Cooley had an investigator in the
courtroom in a blatant attempt to intimidate Lynch. Steve Cooley has a pattern and practice of
retaliating against people, including his own Deputy District Attorneys. Lynch has also asked DOJ and Senate Judiciary
Committee to investigate the fraudulent domestic violence orders, potential
VAWA funding fraud, and has requested a remedy from FBI with respect to the
fraudulent domestic violence orders that have been transmitted into federal
databases.
As of this date, the
Los Angeles City Attorney has filed criminal complaints against Kelley Lynch on
two separate occasions, in 2012 (Los Angeles Superior Court Case No. 2CA04539)
and 2016 (Los Angeles Superior Court Case No. 6CJ03685), alleging violations of
restraining orders issued to Leonard Cohen and violations of restraining orders
that Cohen’s lawyers, Michelle Rice and Robert Kory, do not have. The charges in both cases involve the
companion “intent to annoy” penal code which permits the City Attorney to
selectively attack the speech “content” of one’s communications in violation of
their first amendment right to free speech.
The statute is unconstitutionally vague, does not put an individual on
notice of what annoys someone, the use of the word “legitimate” is subjective
and undefined, and the statute itself is overly broad and wholly infringes on
freedom of speech that is not unprotected speech.
The City Attorney is indeed
attempting to piggy back Kory & Rice onto Leonard Cohen’s conflicting Colorado
and California orders when in fact they are not protected parties in relation
to either order. Both Complaints are
silent as to which restraining order Kelley Lynch violated or how and/or when
she specifically intended to “annoy” Robert Kory and/or Michelle Rice. The prosecutor was unable to provide Lynch
with anything that might resemble a definition of the word “legitimate.”
In both cases, the
Deputy City Attorneys have informed this Court that the case at issue is Los
Angeles Superior Court Case No. BQ033717, the California domestic violence
order.
ARGUMENT
Prosecutors have enormous authority in every
phase of a criminal case, from the start of an investigation through the
sentencing of a defendant after conviction. The source of that authority is the
unregulated discretion the criminal justice system vests in prosecutors to
decide whether to initiate an investigation, which charges to file, when to
file such charges, and whether to offer a plea bargain or request
leniency. See Bordenkircher v. Hayes,
434 U.S. 357, 364 (1978) (“In our system, so long as the prosecutor has
probable cause to believe that the accused committed an offense defined by
statute, the decision whether or not to prosecute, and what charge to file or
bring before a grand jury, generally rests entirely in his discretion.”);
Robert L. Misner, Recasting Prosecutorial Discretion, 86 J. CRIM. L. &
CRIMINOLOGY 717, 718 (1996) (“In the past thirty years . . . power has
increasingly come to rest in the office of the prosecutor. Developments in the
areas of charging, plea bargaining, and sentencing have made the prosecutor the
preeminent actor in the system.”); Tracey L. Meares, Rewards for Good Behavior:
Influencing Prosecutorial Discretion and Conduct with Financial Incentives, 64
FORDHAM L. REV. 851, 862 (1995) (“The prosecutor’s charging discretion is, for
the most part, unreviewable.”); James Vorenberg, Decent Restraint of
Prosecutorial Power, 94 HARV. L. REV. 1521, 1522 (1981) (“There is a broad and
rather casual acceptance of the fact that prosecutors often exercise greater
control over the administration of criminal justice than do other officials.”)
The City Attorney of Los Angeles initiated
proceedings related to restraining order violations involving Robert Kory and
Michelle Rice without any probable cause whatsoever. These individuals do not have restraining
orders against Lynch. At no time has a
court in California, Colorado, or anywhere in the United States (apart from
these and related proceedings where fraudulent domestic violence related orders
temporarily issued) obtained jurisdiction over Robert Kory and Michelle Rice
and issued restraining orders against Lynch on their behalf. Robert Kory and Michelle Rice do not have
standing as the protected party Leonard Cohen.
Their former business premise was the sole property exclusion from the
Colorado order due to the fact that Cohen had an office there. It is obviously questionable if a Colorado
Court even had authority to include a California property in an order. The alleged enforcement jurisdiction of a
California court, which is what the prosecutor is arguing she has although the
California domestic violence order is not the Colorado order, does not permit
this Court to extend standing, jurisdiction and/or protections to parties who
are not the protected party. That would
require an application for a new order, service of documents upon Lynch, a
meaningful opportunity to be heard, and actual findings based on some
indeterminable standard. The sole
protected party in the Colorado proceeding was and remains now deceased
singer-songwriter Leonard Cohen. That is
easily discernible by merely reviewing the caption of the Colorado restraining
order. There is one protected
party: Leonard Cohen. Therefore, the decision to charge Lynch with
violations of a restraining order as they relate to Robert Kory and Michelle
Rice is malicious, vindictive, and outrageous governmental conduct. Furthermore, at no time did Lynch harass,
annoy, or engage in anything other than legitimate conduct with all of Leonard
Cohen’s attorneys of record. An army of
lawyers has felt completely free to communicate with Lynch, encourage others
(such as Stephen Gianelli to harass Lynch while blind copying them), as they
see fit and have willingly, knowingly and intentionally done so since October
2004 through the present. There cannot
be one set of standards for one set of attorneys of record and another for
Lynch. Furthermore, Lynch is not the
party harassing anyone. She is the
victim of outrageous criminal harassment that is obviously highly coordinated
and relates to Leonard Cohen, IRS and federal tax matters, and Phil
Spector. Leonard Cohen’s army of
lawyers, ambulance chasers really, also feel entirely comfortable submitting a voluminous
and constant stream of perjured and fraudulent legal pleadings to this and
other courts. They understand that their
conduct is likely perceived as “litigation protected” and the court system is
incapable of vacating anything. Lynch
has every right to communicate with attorneys of record and that issue is furthermore
specifically carved out in the Colorado order that the prosecution in this case
wrongly insists IS the California order.
As an intelligent attorney recently informed Lynch – “tell the lawyers
to apply for their own restraining orders rather than attempting to piggyback
onto Leonard Cohen’s when they are not a part of that order” which is now
essentially null and void due to Leonard Cohen’s death on November 7, 2016. The protected party no longer exists. Additionally, Leonard Cohen is now
permanently domiciled in a Canadian cemetery and, for all intents and purposes,
has now permanently abandoned his green card.
This creates very serious jurisdictional issues apart from those Lynch
has raised to date in these proceedings.
The prosecutors have no probable cause to conclude that a restraining
order exists with respect to either Kory and/or Rice. The prosecutors have no probable cause to
conclude that any of Lynch’s communications or the content of her speech itself
are not legitimate, not made in good faith, and/or are not litigation protected
communications that involve communications to IRS, FBI, DOJ, Treasury, ICE,
FTB, Senate Judiciary, and other authorities.
See Kelley Lynch’s Section 1385 Motion, and all declarations and
exhibits, incorporated herein by reference.
The City Attorney’s prosecutors, and in
particular Sandra Jo Streeter, have abused their authority. The overwhelming “unfairness” of their
conduct – rather than the likelihood that one day there will be a remote
possibility that an erroneous, accidental issue of fairness will find its way
into these proceedings – is at issue in this case. Due to the prosecution’s past and ongoing
abuse of their authorities, one must draw the conclusion that the prosecutorial
misconduct violated and continues to violate defendant’s constitutional
rights. The conflicts of interest are
substantial and grave. The situation demands
a remedy. The relief granted for the
egregious conflicts, prosecutorial misconduct, irreparable harm, and grave
prejudice to Lynch should redress the harm suffered by her rather than merely
send the government a so-called message about the impropriety of its conduct.
RECUSAL OF PROSECUTORS
The
law and procedures for disqualification of a district or city attorney from
prosecuting a case are set forth in Penal Code section 1424, which provides in
relevant part:
(a)(1) Notice of a
motion to disqualify a district attorney from performing an authorized duty
shall be served on the district attorney and the Attorney General at least 10
court days before the motion is heard.
The notice of motion shall contain a statement of the facts setting
forth the grounds for the claimed disqualification and the legal authorities
relied upon by the moving party and shall be supported by affidavits of
witnesses who are competent to testify to the facts set forth in the
affidavit. The district attorney or the
Attorney General, or both, may file affidavits in opposition to the motion and
may appear at the hearing on the motion and may file with the court hearing the
motion a written opinion on the disqualification issue. The judge shall review the affidavits and
determine whether or not an evidentiary hearing is necessary. The motion may not be granted unless the
evidence shows that a conflict of interest exists that would render it unlikely
that the defendant would receive a fair trial.
An order recusing the district attorney from any proceeding may be
reviewed by extraordinary writ or may be appealed by the district attorney or
the Attorney General. The order recusing
the district attorney shall be stayed pending any review authorized by this
section. If the motion is brought at or
before the preliminary hearing, it may not be renewed in the trial court on the
basis of facts that were raised or could have been raised at the time of the
original motion.
Prior
to the enactment of section 1424 in 1980, the law determining when recusal of
the district attorney of a county or some or all of its employees was
appropriate was set forth in People v. Superior Court (Greer) (1977) 19 Cal.3d 255, which required
recusal for the mere appearance of impropriety.
The first significant analysis of this section by the California Supreme
Court was in People v. Conner (1983) 34 Cal.3d 141. This holding was explained in People v. Eubanks (1996) 14 Cal.4th 580,
591, as follows:
As noted in People v. Lopez (1984) 155
Cal.App.3d 813, 824], the statute refers simply to a “conflict of interest”; it
does not explicitly require an “actual” conflict, nor does it explicitly
exclude “apparent” conflicts. Ibid.
On the other hand, the statute allows disqualification only when a
conflict “renders it unlikely that the defendant would receive a fair trial,”
(§ 1424) whereas Greer allowed
disqualification even when the conflict might merely “appear to affect” the
prosecutor's fairness. We considered and
resolved these interpretive questions regarding section 1424 in People v. Conner, supra, 34 Cal.3d 141 . . . . Recognizing the standard of section
1424 differed from that articulated in Greer, we nonetheless concluded that the
statute “contemplates both ‘actual’ and ‘apparent’ conflict when the presence
of either renders it unlikely that defendant will receive a fair trial.” (34 Cal.3d at p. 147.) The distinction
between actual and apparent conflict is “less crucial” under the statute, we
explained, because of the “additional statutory requirement” that the conflict
must “render it unlikely that the defendant would receive a fair trial.” Ibid. We held that a “conflict,” for purposes of section 1424, “exists whenever the circumstances of a case evidence a reasonable
possibility that the DA's office may not exercise its discretionary function in
an evenhanded manner.” Thus, there is no need to determine whether a
conflict is ‘actual’ or only gives an ‘appearance’ of conflict.” (34 Cal.3d at
p. 148.) But however the conflict is characterized, it warrants recusal only if “so grave as to render it unlikely that
defendant will receive fair treatment during all portions of the criminal
proceedings.” Ibid. Conner establishes
that, whether the prosecutor’s conflict is characterized as actual or only
apparent, the potential for prejudice to the defendant — the likelihood that
the defendant will not receive a fair trial — must be real, not merely
apparent, and must rise to the level of a likelihood of unfairness. Thus
section 1424, unlike the Greer
standard, does not allow disqualification merely because the district
attorney's further participation in the prosecution would be unseemly, would
appear improper, or would tend to reduce public confidence in the impartiality
and integrity of the criminal justice system.
Id. at 591-592.
In other words, a “conflict” arises whenever
there is evidence of a “reasonable possibility” that the prosecutor’s office,
in this case the City Attorney, may not act in an “evenhanded” manner. Therefore, “there is no need to determine
whether a conflict is ‘actual,’ or only gives an ‘appearance’ of
conflict.” People v. Conner, (1983)
34 Cal.3d 141, 193. Conner articulated that a prosecutorial office is obligated
not only to prosecute with vigor, but also to seek justice. This theme was
underscored almost half a century ago by the United States Supreme court in Berger
v. United States, (1935) 295 U.S. 78, 88.
RECUSAL OF THE CITY
ATTORNEY’S OFFICE
Section 1424 Section 1424, subdivision (a)(1),
provides, in relevant part, that a motion to recuse a prosecutor “may not be
granted unless the evidence shows that a conflict of interest exists that would
render it unlikely that the defendant would receive a fair trial.” Section 1424,
subdivision (a)(1), “provides a two-part test: (1) whether there is a conflict
of interest, and (2) whether the conflict is so severe as to disqualify the
district attorney from acting.” People
v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 373 (Bryant). “Section 1424 ‟s standards are prophylactic and are
designed to prevent potential constitutional violations from occurring.” People v. Trinh (2014) 59 Cal.4th
216, 231 (Trinh); Haraguchi, supra, 43 Cal.4th at p. 712 [pretrial recusals
prevent conflicts of interest that could lead to reversals].)
“Recusal of a prosecutor under section 1424
constitutes a statutorily authorized judicial interference with the executive
branch’s constitutional role to enforce the law. Accordingly, the decision
whether to recuse must be carefully considered.
Recusal of an entire prosecutorial office is a serious step, imposing a
substantial burden on the People, and the Legislature and courts may reasonably
insist upon a showing that such a step is necessary to assure a fair trial.”
(Bryant, supra, 60 Cal.4th at p. 374.) “If a defendant seeks to recuse an
entire office, the record must demonstrate that the conduct of any deputy [city
attorney] assigned to the case, or of the office as a whole, would likely be
influenced by the personal interest of the [city attorney] or an employee.”
(Id. at p. 373.)
PROSECUTORIAL
MISCONDUCT
Prosecutorial misconduct is defined as the use
of deceptive or reprehensible methods to attempt to persuade either the court
or the jury. People v. Hill
(1998) 17 Cal.4th 800, 819; People v. Espinosa (1992) 3 Cal.4th 806,
820; People v. Pitts (1990) 223 Cal.App.3d 606, 691.
When alleging misconduct, a defendant need not
make a showing that the prosecutor acted in bad faith. People v. Benson
(1990) 52 Cal.3d 754, 793. Thus, the
California Supreme Court has noted that the term “prosecutorial misconduct” is
somewhat of a misnomer in that “it suggests a prosecutor must act with a
culpable state of mind. A more apt description ... is prosecutorial
error.” People v. Hill, supra, 17
Cal.4th at p. 823, fn. 1. Lynch believes
the title is essentially erroneous and the phrases “prosecutorial misconduct”
and “prosecutorial error” address identical conduct.
Prosecutors are held to an elevated standard of
conduct to that imposed on other attorneys because of the unique function they
perform in representing the interests, and in exercising the sovereign power,
of the state. People v. Kelley (1977)
75 Cal.App.3d 672, 690. As the United
States Supreme Court has noted, the prosecutor represents “a sovereignty whose
obligation to govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is not that it
shall win a case, but that justice shall be done.” Berger v. United States (1935) 295
U.S. 78, 88 [55 S.Ct. 629, 633; 79 L.Ed. 1314, 1321].
REMEDY
There is no singular remedy available to
redress the harm caused by prosecutorial violations of a defendant’s
constitutional rights. The United States Supreme Court has noted that “the
remedy in the criminal proceeding is limited to denying the prosecution the
fruits of its transgression.” United
States v. Morrison, 449 U.S. 361, 366 (1981); see also United States v.
Lin Lyn Trading, Ltd., 149 F.3d 1112, 1118 (10th Cir. 1998) (“The district
court did not adequately explain why less extreme sanctions [than dismissal of
the indictment] would not suffice to protect the defendants’ rights. Under
these circumstances, suppression of all evidence . . . would appear to be an
adequate remedy.”).
For
the aforementioned reasons, the entire Los Angeles City Attorney’s Office must
be recused or, in the alternative, the Family Violence Unit must be
recused. Another remedy would be to
dismiss the charges in their entirety and prohibit the City Attorney from
relitigating these issues. See Exhibit A (declaration of Kelley Lynch);
Exhibit B (declaration of Paulette Brandt); and, Exhibit C (summary of the
conflicts and misconduct to date), attached hereto and made a part hereof.
Defendant is not
unaware of the drastic nature of recusing an entire City Attorney’s Office:
The entire prosecutorial office of the district
attorney should not be recused in the absence of some substantial reason
related to the proper administration of criminal justice.” People ex rel. Younger v. Superior Court (1978)
86 Cal.App.3d 180, 204 . . .; see also People v. Merritt [1993] 19
Cal.App.4th [1573] at pp. 1578-1579, quoting People v. Hernandez (1991) 235 Cal.App.3d 674, 679-680.) Lynch is also not unaware of the drastic
consequences of the conflicts and misconduct on the part of the City Attorney
of Los Angeles. This conduct has
irreparably harmed and prejudiced Lynch.
In fact, as of this date, Lynch is unable to obtain meaningful
employment due to this unconscionable situation.
As another court stated, “The recusal of an
entire prosecutorial office is a serious step, imposing a substantial burden on
the People, and the Legislature and courts may reasonably insist upon a showing
that such a step is necessary to assure a fair trial.” People v. Hamilton (1989) 48 Cal.3d
1142, 1156. “It is a disfavored remedy
that should not be applied unless justified by a substantial reason related to
the proper administration of justice. The
showing of conflict of interest necessary to justify so drastic a remedy must
be especially persuasive.” Millsap v.
Superior Court, [1999] 70
Cal.App.4th [196] at p. 201.) Indeed, one court has indicated that there must
be “no other alternative available but to recuse the entire district attorney's
office.” Merritt, supra, 19
Cal.App.4th at p. 1579; People v. Cannedy (2009) , 176 Cal.App.4th 1474,
1482; see also People v. Gamache (2010)
48 Cal.4th 347.
But the mandate of section 1424 has often required
the recusal of an entire prosecutorial office and should do so in the case at
bar. See also, People v. Eubanks;
Lewis v. Superior Court (1997)
53 Cal.App.4th 1277; People v. Choi (2000) 80 Cal.App.4th 476; and People v. Conner, supra, 34 Cal.3d at
pp. 148-149, upholding recusal of an entire office. The remedy in this instance is not drastic;
it is called for.
In City and County
of San Francisco v. Cobra Sol (2006)
38 Cal.4th 839, the court upheld the recusal of the entire San Francisco City
Attorney’s Office stating:
Individuals who head a
government law office occupy a unique position because they are ultimately
responsible for making policy decisions that determine how the agency's
resources and efforts will be used. Moreover, the attorneys who serve directly
under them cannot be entirely insulated from those policy decisions, nor can
they be freed from real or perceived concerns as to what their boss wants. The
power to review, hire, and fire is a potent one. . . . There is another reason to require the
disqualification of the conflicted head of a government law office. That reason
arises from a compelling societal interest in preserving the integrity of the
office of a city attorney. It is beyond dispute that the citizens of a city are
entitled to a city attorney's office that unreservedly represents the city's
best interests when it undertakes litigation. Public perception that a city
attorney and his deputies might be influenced by the city attorney's previous
representation of the client, at the expense of the best interests of the city,
would insidiously undermine public confidence in the integrity of municipal
government and its city attorney's office.
Id. at 853-854.
Failing to recuse the
entire City Attorney’s Office, or to provide Lynch with a specific remedy in
this case, would also constitute a denial of the Fourteenth Amendment’s right
to due process of law and a fair trial. See
Marshall v. Jerrico, Inc.
(1980) 446 U.S. 238, 249-250, where the high court observed that “prosecutors
are also public officials; they too must serve the public interest” and that
consequently “a scheme injecting a personal interest, financial or otherwise,
into the enforcement process may bring irrelevant or impermissible factors into
the prosecutorial decision and in some contexts raise serious constitutional
questions.”)
If this Court decides not to permit a
hearing on this motion, Lynch would like to request a standing objection for
all proceedings as follows: Lynch
objects to all prosecutorial misconduct; misstatement of facts; any and all violations
of VAWA, Supremacy Clause of the U.S. Constitution, Full Faith & Credit,
due process of law, any and all potential constitutional rights she is afforded
by the U.S. and California constitutions; and federal preemption should apply
to all matters related to IRS and federal tax matters. In this way, Lynch will not have to interrupt
so frequently and/or annoy the triers of fact.
CONCLUSION
For the foregoing
reasons, defendant Kelley Lynch respectfully submits that the Court should
grant an evidentiary hearing where the issues raised herein may be determined. The remedy Lynch has suggested is: 1) recuse the entire Office of the Los
Angeles City Attorney, or 2) recuse the “Family Violence Unit,” or 3) dismiss
the false charges in their entirety and prohibit the City Attorney from
relitigating these issues.
Date: 23 February 2017 Respectfully submitted,
____________________________________
Kelley
Lynch, in Propria Persona
Served upon the Attorney General of California
