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.
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.4th 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 NO. BQ033717
Case
Number: BQ033717
LEONARD NORMAN COHEN VS KELLEY ANN LYNCH
LEONARD NORMAN COHEN VS KELLEY ANN LYNCH
Filing Date: 05/25/2011
Case Type: Civil Petition - TRO/Dom Violence (General Jurisdiction)
Status: Pending
Case Type: Civil Petition - TRO/Dom Violence (General Jurisdiction)
Status: Pending
Parties
COHEN LEONARD NORMAN -
Petitioner
LYNCH KELLEY ANN -
Respondent
RICE MICHELLE L. -
Attorney for Petitioner
04/04/2012 Request-Copies
05/25/2011 Order-Reg. of Out-of-State DV [Domestic Violence]
Filed by Petitioner
Filed by Petitioner
