MEMORANDUM OF POINTS & AUTHORITIES
BACKGROUND & PROCEDURAL HISTORY
Kelley Lynch has been falsely accused and charged with
violating a restraining order issued to deceased singer-songwriter Leonard
Cohen and allegedly sending illegitimate communications – with the “intent to
annoy” - to Robert Kory, Michelle Rice, IRS, FBI, DOJ, Treasury, ICE, CIA,
Senate Judiciary, FTB, and others. The
issue with respect to the conflicting Colorado civil harassment order and
California domestic violence order remains unresolved.
She now moves to sever issues related to so-called uncharged
offenses, acts, unrelated issues, all evidence, and hearsay statements the
People have introduced into this case involving same. These uncharged offenses and attendant
evidence and/or hearsay statements, addressed more fully herein, unfairly
prejudice Lynch’s defense, violate her right to due process, and additional
constitutions rights, including a fair trial.
ARGUMENT
The purpose of this motion is to sever issues. The uncharged offenses and/or issues, raised
through unauthenticated, fabricated electronic communications and/or hearsay
with respect to alleged communications between the City Attorney and District
Attorney of Los Angeles, have introduced the following irrelevant, immaterial, inflammatory,
and prejudicial issues into this case:
former DA Steve Cooley, Phil Spector’s murder trial and conviction, Dr.
Dre’s song “Natural Born Killaz,” Oliver Stone, Stephen Gianelli’s libelous
statements about Lynch, Phil Spector’s legal team (specifically Dennis Riordan
and Bruce Cutler), Sandra Jo Streeter’s request to have Lynch drugged and
committed (to a domestic violence facility) over her letters to Bruce Cutler, a
Valentine card sent to FBI and DOJ as an example of a false threat scam being
run out of Los Angeles and requests for investigations into same, the fact that
Streeter broke a podium during the 2012 proceedings and/or Lynch’s alleged
personal opinions regarding Streeter’s fashion sense, a hearsay parody email
sent to Bruce Cutler that involves Steve Cooley and federal agencies Lynch has
communicated with extensively, the official use of perjury to obtain
convictions, Lynch’s presidential campaign platform, the appointment of her FBI
and/or CIA directors, a possible wedding in the White House Rose Garden, the
appointment of her Attorney General and request that he or she pursue charges
against former DA Steve Cooley, the ACLU’s position on Steve Cooley’s demands
for speedy executions of people using a questionable drug, witnesses who have
lied under oath (during Lynch’s 2012 trial, other proceedings, and the Phil
Spector murder case), CIA’s threat disposition matrix and drone program (and
individuals who are in their matrix database), a federal tax controversy
related to allegations that Leonard Cohen committed civil and criminal tax
fraud, and so forth.
Motions to
sever ask for separate trials. A motion to “sever” asks the court to order
separate trials of issues, causes of action, or parties joined in a single
action. The purpose of severence is to avoid prejudice, promote convenience, or
permit greater expedience and economy. California
Code of Civil Procedure Section 1048(b).
Severance or a separate trial is a procedural device that
allows the court to divide a lawsuit into two or more parts, establish the
order in which they will be resolved, and resolve them separately. Severance can be an important way to improve
trial efficiency because it allows the court to avoid adjudicating every issue
in a case when deciding a subset of the issues may be dispositive. This motion seeks to sever matters related to
charged and uncharged alleged offenses, the issues raised with respect to them,
and related evidentiary matters.
Admission of the so-called uncharged offenses and evidence related to
same would unfairly prejudice Kelley Lynch.
Additionally, the Phil Spector case was and remains highly inflammatory
and the introduction of his murder trial into the case in chief will confuse
jurors and further prejudice her. Lynch
contends that the People have introduced these issues into their case – through
fabricated email evidence and hearsay statements - in an attempt to mitigate
issues, for purposes of retaliation and to apply the res judicata doctrine to issues that have not been
litigated and have nothing whatsoever to do with an alleged restraining order
violation and/or the legitimacy of Lynch’s alleged communications. That would include, but is not limited to,
her formal claims against the City and County of Los Angeles. Lynch notified the City and County of Los
Angeles that she intended to pursue a federal lawsuit against them. She maintains that the City and County of Los
Angeles are using this proceeding to mitigate liability.
Severance would be appropriate to promote efficiency,
avoid prejudice, improve the accuracy of the adjudication, and to ensure that
all offenses – both charged and uncharged - are properly and fully litigated. It would also allow the Court to determine
how the proceedings should be structured, which claims or issues should be
tried first, whether or not there should be a partial stay of discovery, whether
or not separate trials should take place before the same or different juries,
and what the most appropriate scope of severance (complete severance or
separate trials) would be. The inclusion
of the uncharged offenses, prior bad acts, evidence related thereto, and/or the
false accusations have now raised multiple issues that would be better resolved
in separate trials. The Court may order
a separate trial of one or more separate issues, offenses, and/or charges. This would preserve Defendant’s right to a
jury trial, due process, litigation on the merit of all issues, and fair
adversarial proceedings.
Defendant Kelley Lynch believes the issues involving the
Phil Spector case, former District Attorney Steve Cooley, whether or not Phil
Spector was set up, Deputy City Attorney Sandra Jo Streeter’s conduct throughout
all proceedings – including her request to have Lynch drugged and committed to
a domestic violence facility – and Cohen’s tax fraud, and so forth should be
tried first and separately from the charge offenses in the People’s complaints. This would narrow the courtroom debate and
focus on specific issues. For example,
with respect to the charged offenses, the debate could focus on alleged
restraining order violations and/or the intent and legitimacy of Lynch’s
alleged communications. With respect to
the uncharged offenses and/or evidence, the debate could focus on the Phil
Spector murder case, whether or not he is in fact innocent, former DA Steve
Cooley and Cohen’s possible informant status, any quid pro quo between Cohen
and government actors in the City and/or County of Los Angeles, DCA Sandra Jo
Streeter’s conduct, criminal witness tampering and retaliation, Dr. Dre’s “Natural
Born Killaz” lyric, Lynch’s presidential campaign platform that set forth her
interest in tackling political corruption, the appointment of Lynch’s FBI and
CIA directors, California’s perjury statute as it relates to government
officials, whether or not the U.S. Attorney General should prosecute Steve
Cooley to the fullest extent of the law, CIA’s drone program and threat
disposition matrix, CIA’s MK Ultra program and Cohen’s position that he was a
participant, the ACLU’s arguments in response to Steve Cooley’s demands for
swift executions using a questionable drug, parodies involving government
actors, political speech, grievances to the government and retaliation over
same, privileged communications with federal government agencies and other
authorities, a federal tax controversy related to Leonard Cohen and
corporations he controlled, witnesses who have lied under oath, and so
forth. Introducing these extraneous
issues into the case in chief would serve to gravely prejudice Lynch and
confuse jurors with endless erroneous, complex, and unrelated issues and
evidence. These alleged uncharged
offenses, and the attendant evidence (fabricated emails and hearsay) related to
same, have no probative value with respect to the charged offenses.
For all of the reasons detailed herein, Kelley Lynch requests
that this motion to sever be granted.
General Legal Principles
The
trial court has the discretion to sever issues.
The trial court also has the discretion to admit evidence, or in this
case evidence related to uncharged offenses such as witness dissuasion with respect to Streeter and/or credible threats with respect to Cooley,
ostensibly committed by a defendant other than the one for which she is
charged, if such evidence is relevant to prove some fact at issue, and if the
probative value of the evidence outweighs its prejudicial effect. “When reviewing the admission of evidence of
other offenses, a court must consider (1) the materiality of the fact to be
proved or disproved, (2) the probative value of the other crime evidence to
prove or disprove the fact, and (3) the existence of any rule or policy requiring
exclusion even if the evidence if relevant.
This type of evidence can be irreparably damaging and therefore “if the
connection between the uncharged offense and the ultimate fact in dispute is
not clear, the evidence should be excluded.”
People v. Hawkins (1995) 10 Cal.4th 920, 951, 42
Cal.Rptr.2d 636, 897 P.2d 574. It
remains unclear what the relationship between the charged and uncharged
offenses are and the People should be forced to clarify that issue.
Sever & Prove Each Element of Each So-called
Uncharged Act, Offense and/or False Accusation
The elements
the prosecution must prove with respect to the fabricated email evidence and/or
hearsay communications related to alleged witness dissuasion (Sandra Jo
Streeter) and/or criminal threats (former DA Steve Cooley) should be the
subject of an entirely separate proceeding where Lynch is afforded a fair
hearing, ability to confront her accusers, discovery related to same, the
appropriate standard of proof (beyond a reasonable doubt), separate investigations,
and so forth. Exhibit A: Elements of Witness Dissuasion and Criminal
Threats, attached hereto and made a part hereof.
The
admission of other crimes evidence is governed by Section 1101. At this time, Kelley Lynch is asking the Court
to sever the uncharged offenses and related evidence from the main case.
Section
1101: “Subdivision (a) of Section 1101
prohibits admission of evidence of a person’s character, including evidence of
character in the form of specific instances of uncharged misconduct, to prove
the conduct of that person on a specified occasion. Subdivision (b) of Section 1101 clarifies,
however, that this rule does not prohibit admission of evidence of uncharged
misconduct when evidence is relevant to establish some fact other than the
person’s character or disposition.” People
v. Ewoldt (1994) 7 Cal.4th 380, 393, 27 Cal.Rptr.2d 646, 867
P.2d 757. The categories listed in section 1101,
subdivision (b), are examples of facts that legitimately may be proved by
other-crimes evidence, but the list is not exclusive.”
People v. Catlin (2001) 26 Cal.4th 81, 146, 109 Cal.Rptr.2d 31,
26 P.3d 357. Hence, “although evidence of prior offenses may not be introduced
solely to prove criminal disposition or propensity such evidence may properly
be admitted whenever it tends logically, naturally, and by reasonable inference
to establish any fact material for the People or to overcome any material
matter sought to be proved by the defense.”
People v. Montalvo (1971) 4 Cal.3d 328, 331–332, 93 Cal.Rptr. 581, 482
P.2d 205. Lynch maintains that the
prosecution is attempting to introduce the uncharged offenses (and attendant
issues raised in connection with those offenses) to prove criminal disposition
and/or propensity. The uncharged
offenses do not tend to logically, naturally, and/or by reasonable inference
establish any fact in this case.
Evidence Code section 1101,
subdivision (b)
Evidence Code section 1101, subdivision (b), permits “the
admission of evidence that a
person committed a crime,
civil wrong, or other act when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake
or accident), or whether a defendant in a prosecution for an unlawful sexual
act or attempted unlawful sexual act did not reasonably and in good faith
believe that the victim consented) other than his or her disposition to commit
such an act.” (Evid. Code, § 1101, subd. (b).)
While Evidence Code section 1101, subdivision (a), prohibits
admission of a person’s character, whether in the form of opinion, reputation evidence,
or evidence of specific acts, to prove a person’s conduct on a specified
occasion, Evidence Code section 1101, subdivision (b) allows for admission of
evidence of a person’s prior acts when offered to prove a fact other than his
or her disposition to commit the contested act. Such prior misconduct evidence
may be offered to prove such facts as motive, opportunity, intent, preparation,
plan, knowledge, identity, the absence of mistake or accident or lack of a reasonable
belief that a person consented to engaging in a sexual act. Lynch has engaged in no prior misconduct and
did not transmit the fabricated email evidence at issue in this case.
Similarity Requirements
In People v.
Ewoldt (1994) 7 Cal.4th 380, 401, the California Supreme
Court held that evidence of a defendant’s uncharged misconduct is relevant
where the uncharged misconduct and the charged offense are sufficiently similar
to support the inference that they are manifestations of a common design or
plan. The court distinguished between the nature and degree of similarity
required in order to establish a common design or plan, as opposed to that
required to prove intent or identity. The
court found the least degree of similarity between the uncharged act and
charged offense is required to prove intent.
Id. at p. 402. In order to
be admissible to prove intent, the uncharged misconduct must be sufficiently
similar to support the inference that the defendant “‘probably harbored the
same intent in each instance.’” Ibid.
A greater degree of similarity is required to prove existence
of a common design or plan. “To
establish the existence of a common design or plan, the common features must indicate
the existence of a plan rather than a series of similar spontaneous acts, but
the plan thus revealed need not be distinctive or unusual.” Id. at p. 403. Prior bad acts may be admitted if they
demonstrate “circumstantially that the defendant committed the charged offense
pursuant to the same design or plan he or she used in committing the uncharged
acts. Unlike evidence of uncharged acts
used to prove identity, the plan need not be unusual or distinctive; it need
only exist to support the inference that the defendant employed that plan in
committing the charged offense.” Ibid.
Finally, the court stated that the greatest degree of similarity is
required to prove identity. For identity
to be established, the uncharged conduct and the charged offense must share common
features that are sufficiently distinctive so as to support the inference that
the same person committed both acts. Id.
at p. 403. “‘The pattern and characteristics of the crimes must be so unusual
and distinctive as to be like a signature.’” (Ibid.)
There is no similarity whatsoever between the charged
offenses and alleged uncharged offenses or evidence and issues related
thereto.
Admission of Uncharged Acts Subject to Evidence Code Section
352 Balancing
The California Supreme Court has also held that even evidence
that meets the requirements of Evidence Code section 1101, subdivision (b),
must still be subjected to a weighing under Evidence Code section 352 prior to
being admitted. Id. at p. 404. Ewoldt reasoned: Evidence of
uncharged offenses “is so prejudicial that its admission requires extremely
careful analysis.” People v. Smallwood (1986)
42 Cal.3d 415, 428, 228 Cal.Rptr. 913, 722 P.2d 197; see also People v. Thompson (1988)
45 Cal.3d 86, 109, 246 Cal.Rptr. 245, 753 P.2d 37. Since “substantial prejudicial effect [is] inherent
in [such] evidence,” uncharged offenses are admissible only if they have “substantial
probative value.” People v. Thompson (1980)
27 Cal.3d 303, 318, 165 Cal.Rptr. 289, 611 P.2d 883. To be admissible such evidence “must not
contravene other policies limiting admission, such as those contained in
Evidence Code section 352.” People v.
Thompson, supra, 45 Cal.3d at p. 109, 246 Cal.Rptr. 245, 753
P.2d 37. The probative value of the
so-called evidence of defendant’s uncharged offenses is substantially
outweighed by the probability that its admission [would] ... create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury. Evid. Code, § 352.
Due Process Protects an Accused Against Conviction Except
Upon Proof Beyond A Reasonable Doubt of Every Element of the Crime
In 1970, the United States Supreme Court held in In
re Winship that the due process clauses of the Fifth and Fourteenth
Amendments “[protect] the accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he
is charged.” In re Winship, 397 U.S. 358, 364 (1970). See
also Sullivan v. Louisiana, 508 U.S. 275 (1993) Sixth Amendment
guarantee of trial by jury requires a jury verdict of guilty beyond a
reasonable doubt. The reasonable doubt
standard plays a vital role in the American scheme of criminal procedure. It is
a prime instrument for reducing the risk of convictions resting on factual
error. The standard provides concrete substance for the presumption of
innocence—that bedrock “axiomatic and elementary” principle whose “enforcement
lies at the foundation of the administration of our criminal law.” 397 U.S. at 363 (quoting Coffin v. United
States, 156 U.S. 432, 453 (1895). Justice
Harlan's Winship concurrence, id. at
368, proceeded on the basis that inasmuch as there is likelihood of error in
any system of reconstructing past events, the error of convicting the innocent
should be reduced to the greatest extent possible through the use of the
reasonable doubt standard. In many past
cases, this standard was assumed to be the required one, [Miles
v. United States, 103 U.S. 304, 312 (1881); Davis v.
United States, 160 U.S. 469, 488(1895); Holt v. United
States, 218 U.S. 245, 253 (1910); Speiser v.
Randall, 357 U.S. 513, 525-26 (1958)] but because it
was so widely accepted only recently has the Court had the opportunity to
pronounce it guaranteed by due process. In addition to Winship, see
also Estelle v. Williams, 425 U.S. 501, 503 (1976); Henderson
v. Kibbe, 431 U.S. 145, 153 (1977); Ulster
County Court v. Allen, 442 U.S. 140, 156 (1979); Sandstrom
v. Montana, 442 U.S. 510, 520-24 (1979) on the
interrelated concepts of the burden of the prosecution to prove guilt beyond a
reasonable doubt and defendant's entitlement to a presumption of
innocence, see Taylor v. Kentucky, 436 U.S. 478, 483-86 (1978), and Kentucky
v. Whorton, 441 U.S. 786 (1979). The presumption of innocence is valuable in
assuring defendants a fair trial, [E.g.,
Deutch v. United States, 367 U.S. 456, 471 (1961). See
also Cage v. Louisiana, 498 U.S. 39(1990).
In state
criminal trials, the Due Process Clause of the Fourteenth Amendment protects
the accused against conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime with which he is charged. Inasmuch as
due process requires the prosecution to prove beyond a reasonable doubt every
fact necessary to constitute the crime charged,* the Court held
in Mullaney v. Wilbur [421 U.S. 684 (1975). See also Sandstrom
v. Montana, 442 U.S. 510, 520-24 (1979)] that it was
unconstitutional to require a defendant charged with murder to prove that he
acted “in the heat of passion on sudden provocation” in order to reduce the
homicide to manslaughter. The Court indicated that a balancing of interests
test was to be employed to determine when the due process clause required the
prosecution to carry the burden and when some part of the burden might be
shifted to the defendant, but the decision called into question the practice in
many States under which some burdens of persuasion were borne by the defense,
and raised the prospect that the prosecution must bear all burdens of
persuasion, a significant and weighty task given the large numbers of
affirmative defenses.
While due process requires that each element of a crime be proved beyond a reasonable doubt, uncharged offenses introduced to show
the existence of some element of the charged crime need only be proved by a
preponderance of substantial evidence. This unduly prejudices Lynch,
violates her rights to due process, and undermines her ability to have a fair
trial.
Character Evidence
In general, under Evidence Code Section
1101, so-called “character evidence” is not admissible in a California
criminal jury trial to show that
a person acted in accordance with his/her character on a particular occasion. The prosecutor may not introduce evidence of alleged
bad acts committed in the past—criminal or otherwise—in order to show that the
defendant committed the crime with which he/she has been charged. Id. See also People v. Terry (1970) 2 Cal.3d 362,
400.
One relevant
exception is when the defendant is
charged with California domestic violence. Then the
prosecutor may introduce evidence that s/he has committed similar crimes in the
past. In a domestic
violence case, the prosecutor may introduce
evidence that you committed a similar crime in the past, even though such
evidence would normally be inadmissible character evidence. This exception is set forth in Evidence Code
Section 1109. Lynch has never been charged with domestic violence, there have never
been findings related to domestic violence, and the Colorado order was a civil
harassment non-domestic violence order granted on the basis of a business
relationship. Permitting the prosecutors
to avail themselves of Evidence Code Section 1109 would violate Lynch’s right
to due process.
Kelley Lynch has never been charged with domestic
violence, there are no findings related to domestic violence, the Colorado
order is not a domestic violence order, and, Cohen and Lynch were not in a
statutory required dating relationship.
Therefore, any and all attempts to use Section 1109 does indeed violate
Lynch’s right to due process. The jurors
in Lynch’s 2012 trial were advised that Lynch violated the Colorado order. The Colorado order is not a domestic violence
order.
Kelley Lynch Has
No Common Plan or Design
Evidence Code Section
1101(b) permits the use of uncharged crimes to prove common plan or
design. People v. Dancer (1996)
45 Cal.App.4th 1677, 1688. Evidence of a common plan or design is admissible to
show that the criminal act alleged (in this case, the homicide of victim
Clarkson) in fact occurred. People v.
Ewoldt (1994) 7 Ca1.4th 380, 393 & 399; People v. Dancer, supra, 45
Ca1.App.4th at 1688.
While the words “common
plan” or “common design” may suggest a single, continuing plot to commit a
series of connected crimes, the California Supreme Court has specifically rejected
such a restrictive approach. People v. Ewoldt, supra, 7 Ca1.4th at
pp. 399 & 401; People v. Castillo (1997) 53 Cal.App.4th 416, 426).
Instead, common plan or design should be seen simply as a similar modus
operandi pursuant to which the defendant commits a series of similar, though
not necessarily connected, crimes. People v. Ewoldt, supra, 7 Ca1.4th at
399 403). Evidence that a defendant committed uncharged crimes similar to the
charged offense is relevant if it circumstantially demonstrates that the
defendant committed the charged offense pursuant to the same plan or design
used to commit the uncharged crimes. Id.
at 402.
In order to show a common
plan or design, the uncharged acts must simply share with the
charged offense a
concurrence of common features such that the various acts are naturally to be explained
as individual manifestations of a general plan. (Id. at 403). The common
features must indicate the existence of a plan rather than a series of similar
spontaneous acts, but the plan revealed need not be distinctive or unusual.
(Ibid). The level of similarity required is greater than that required to show
a defendant’s intent, but less than the distinctiveness required to prove identity.
(Id. at 402).
REQUIREMENTS FOR JOINDER OF CHARGES
Section 954 of the Penal Code sets forth the requirements for joinder of
criminal charges. It provides in pertinent part: "An accusatory
pleading may charge two or more different offenses connected together in
their commission, or different statements of the same offense or two or more
different offenses of the same class of crimes or offenses, under separate
counts .... [Provided], that the court in which a case is triable, in the
interests of justice and for good cause shown, may in its discretion order that
the different offenses or counts set forth in the accusatory pleading be tried
separately or divided into two or more groups and each of said groups tried
separately." Kelley Lynch argues
that failure to sever the uncharged offenses, whether or not they are in the
information complaints, would be an egregious due process violation. The inclusion of the uncharged offenses and these
issues raised therein would unduly prejudice Lynch particularly as the Phil
Spector case is highly inflammatory and the former District Attorney’s
involvement in Lynch’s 2012 trial was tantamount to criminal witness
intimidation and may have involved a quid pro quo with respect to Leonard
Cohen’s testimony with respect to Phil Spector.
People v. Poon, supra, 125 Cal. App. 3d 55; People v. Kemp
(1961) 55 Cal. 2d 458, 477 [11 Cal. Rptr. 361,
359 P.2d 913]; People v. Meneley, supra, 29 Cal.App.3d at p. 52.)
Prejudice Requires Severance
If clearly established by defendant, prejudice may require severance,
even though joinder is statutorily permissible under section 954. As was noted
in Coleman v. Superior Court (1981) 116 Cal. App. 3d 129, 135 [172 Cal. Rptr. 86], certiorari denied 451
U.S. 988 [68 L. Ed. 2d 846, 101 S. Ct. 2325], “the determination that the
offenses are ‘joinable’ under section 954 is only the first stage of analysis
because section 954 explicitly gives the trial court discretion to sever
offenses or counts ‘in the interest of justice and for good cause shown.’ ‘Statutory
permission to consolidate does not supply a complete answer, for section 954
gives the trial court discretionary power to order separate trials in the
interests of justice. Refusal of severance may be prejudicial error if
discretion is abused.’ [Citing People v. Blalock (1965) 238 Cal. App. 2d 209, 222 (47 Cal.Rptr. 604).]”
Relevance & Propensity
As noted in People v. Thompson (1980) 27 Cal.
3d 303, 316 [165 Cal. Rptr. 289, 611 P.2d 883], "Evidence
Code section 1101, subdivision (a) expressly prohibits the use of an uncharged
offense if the only theory of relevance is that the accused has a propensity
(or disposition) to commit the crime charged and that this propensity is
circumstantial proof that the accused behaved accordingly on the occasion of
the charged offense. Subdivision (a)
does not permit a court to balance the probative value of the evidence against
its prejudicial effect. The inference of a criminal disposition may not be used
to establish any link in the chain of logic connecting the uncharged offense
with a material fact. If no theory of relevance can be established without this
pitfall, the evidence of the uncharged offense is simply inadmissible.” Lynch does not have a criminal
disposition. Any such disposition has
been created by the use of restraining orders as tactics, a fabricated
narrative that continues to be expanded upon, and a fictitious course of
conduct.
It Would Be Impossible For Jurors Not to
Aggregate All Evidence
A principal concern at issue herein lies in the danger
that the jury would aggregate all of the evidence, though presented separately
in relation to each charge, and convict on both charges in a joint trial;
whereas, at least arguably, in separate trials, there might not be convictions
on both charges. Joinder in this case will make it difficult not to view the
evidence cumulatively. The result might very well be that the two cases
would become, in the jurors' minds, one case which would be considerably
stronger than either viewed separately.
The immateriality and irrelevance of
the issues and/or offenses to this case as well as the substantial prejudice to
Kelley Lynch warrants severance under Section 954 of the Penal Code. The alleged offenses are not of the same
class and the other offenses alleged to have been committed are not connected
together in their commission. Therefore,
these issues and/or offenses are not properly joined under Section 954. Section 954 gives the court discretion to
order separate trials in the interest of justice. People v. Blalock (1965) 238
Cal. App. 2d 209, 222 [47 Cal. Rptr. 604]. Such a motion is an appeal to the sound discretion
of the trial court. People v. Duane
(1942) 21 Cal.
2d 71, 78 [130 P.2d 123]; People v. Isby (1947) 30 Cal.
2d 879, 897 [186 P.2d 405].
“If established, prejudice may require severance, even though joinder of
the offenses is permissible under section 954. ... “ People v. Poon (1981) 125
Cal. App. 3d 55, 69 [178
Cal. Rptr. 375].
Prejudice, Inflammatory Arguments &
Confused Unrelated Issues
A ruling on a motion to sever is based on a weighing of
the probative value as against the prejudicial effect, but in the weighing
process the beneficial results from joinder are added to the probative-value
side.
A demonstration of substantial prejudice by a defendant
may be sufficient to warrant severance of charges which could otherwise properly
be joined. When substantial prejudice is clearly shown, a trial court's denial
of a defendant's motion for severance constitutes an abuse of discretion under
Penal Code section 954. Fundamental principles of due process compel such a
conclusion.
The pursuit of judicial economy and efficiency may
never be used to deny a defendant his right to a fair trial. (In re
Anthony T. (1980) 112
Cal. App. 3d 92, 102 [169
Cal. Rptr. 120].)
The refusal to sever these issues and/or offenses would
deny Kelley Lynch the fundamental right to due process and a fair trial.
CONCLUSION
The
Court should grant this severance motion and order separate trials on the
charged and uncharged offenses. The
alleged uncharged offenses are being used to bolster the charges brought and
insert extraneous issues into this case.
Joining the charged and uncharged offenses violates Kelley Lynch’s right
to a fair trial under the Fifth and Sixth Amendment to the United States
Constitution. An accused retains federal
due process rights even after the passage of Penal Code Section 954.
Dated:
25 September 2017 Respectfully
submitted,
_________________________________
Kelley
Lynch
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
am submitting this declaration in support of my motion to sever certain
uncharged offenses, acts, evidence, false accusations, and extraneous issues
from the charged offenses. The
fabricated email evidence related to Sandra Jo Streeter, and the hearsay with
respect to an alleged email sent Bruce Cutler (evidently about Steve Cooley),
discussions about these matters between the City Attorney and District Attorney,
have introduced the following issues into this case: CIA, Streeter’s conduct and wardrobe during
the 2012 proceedings, Streeter gushing into a cell phone about Leonard Cohen and
breaking the podium during the prior trial, witnesses who lie under oath, Steve
Cooley and potential prosecution by the U.S. Department of Justice, a federal criminal
tax controversy related to Leonard Cohen and corporations he controlled, Phil
Spector’s murder conviction and his innocence, Dr. Dre’s song “Natural Born
Killaz,” Oliver Stone, endless criminal harassment and slander related to Stephen
Gianelli, the use of the english language words “liars” and “thugs,” Phil
Spector’s legal team (specifically Bruce Cutler and Dennis Riordan), a
Valentine card sent FBI and DOJ as an example of a false threat scam being run
out of Los Angeles and request for investigations into same, my 2012 trial
being a mini-Phil Spector murder trial, the prosecution’s attempt to sabotage
IRS and a federal tax controversy involving Leonard Cohen, Streeter’s
conclusion that I should be drugged and committed to a “domestic violence”
facility with respect to letters I sent Bruce Cutler, my mother’s views on that
issue, my privileged communications with IRS, FBI, DOJ, and other authorities,
attempts to limit those communications, misleading and lying to jurors,
retaliation over probation that involved Stephen Gianelli’s harassing
communications to the City Attorney and District Attorney, false imprisonments,
my claims against the City and County of Los Angeles, the first amendment and
retaliation over grievances to government authorities, outrageous government
conduct as it relates to interference with an IRS matters, non-compliance with
federal tax laws, and the Phil Spector case, and so forth. These issues generally have nothing
whatsoever to do with charges related to violations of a restraining order,
fraudulent or otherwise, and/or the legitimacy of alleged communications to
Kory, Rice, IRS, FBI, DOJ, Treasury, ICE, CIA, U.S. Senate Judiciary, FTB, and
others. The issues raised in the
uncharged offenses, and with respect to communications between the City
Attorney and District Attorney about me and the Phil Spector case, as well as
all evidence related thereto should be severed from the charged offenses and
heard separately.
3. I
view these proceedings as blatant retaliation and further attempts to destroy
me. These proceedings are nothing other
than thinly disguised criminal witness tampering, criminal witness
intimidation, and endless attempts to sabotage IRS, insert Phil Spector into
these proceedings, and an opportunity to argue erroneous matters using a
domestic violence order and paid victim witnesses who are eternally conflicted
as Leonard Cohen’s general counsel, litigation counsel, corporate counsel, and
co-conspirators.
4. I
believe I am being retaliated against due to the fact that I reported
allegations related to Leonard Cohen’s civil and criminal tax fraud to IRS and
other authorities and have been vocal about Phil Spector’s innocence. I am convinced that former DA Steve Cooley
had investigators in the courtroom during my 2012 trial in an attempt to
intimidate me. I also believe Leonard
Cohen may have been an “informant” of sorts against Phil Spector that resulted
in his testimony about Phil Spector and a gun during my 2012 trial. The prosecutor during my 2012 trial elicited
testimony about Phil Spector, Cohen’s statements and/or testimony being
transmitted to Spector’s Grand Jury and/or used in Spector’s proceedings, and
used an email I sent Dennis Riordan to elicit that testimony from Leonard Cohen
regarding those issues. Cohen testified
that he was a recipient of the email sent to Dennis Riordan, he was not, and on
cross acknowledged that he was not. I
believe I am legally entitled to advise Dennis Riordan that Cohen advised me
for twenty years that Phil Spector never held a gun on him, his gun stories
about Phil Spector were nothing other than “good rock ‘n roll stories,” and
Cohen refused to provide me with IRS required tax and corporate
information. I was therefore targeted by
the prosecution for transmitting witness information to Dennis Riordan. Similarly, I was targeted by the prosecution
with respect to allegations that Leonard Cohen committed civil and criminal tax
fraud, my communications with IRS and other authorities, and for transmitting
information to DOJ and FBI about meth labs, meth distribution, a murder, and
the Aryan Nation. I was privy to that
information due to the fact that Leonard Cohen bankrupted me and forced me into
homelessness. These are just three examples
of information I transmitted to Phil Spector’s legal team and/or the federal
government for which I was retaliated against by the prosecution throughout the
2012 proceedings.
5. I
have information about witnesses who have lied either on the stand in the Phil
Spector case or whose statements were used in the Spector case with respect to
prior bad acts. Two of those individuals
are Leonard Cohen and Stephanie Jennings.
It is my understanding, based upon a review of the Grand Jury
transcripts by journalist Mick Brown (UK Telegraph) that Leonard Cohen’s
statements and/or testimony were transmitted to Phil Spector’s Grand Jury. Mr. Brown brought this to my attention. I was prosecuted in 2012 over that
issue. I am aware of the fact that the
Spector prosecution used a version of Cohen’s good rock ‘n roll gun story about
Phil Spector in at least one motion filed in that case. That motion is readily available on LA
Superior Court’s website and can be viewed at this link.
In this particular version, the Spector
prosecution set forth a version of this alleged incident that was contradicted
by Cohen’s own testimony during my 2012 trial.
In this version, Phil Spector allegedly pointed a semi-automatic at Cohen’s
chest. During my trial, Cohen testified
that Phil Spector allegedly pointed an automatic at his head. At the outset of the 2012 trial, Cohen wrote
Sandra Jo Streeter that Spector pointed the gun at his neck. There are now three contradictory versions of
this incident before LA Superior Court.
They involve the following components:
a gun to the head, neck, or chest; an automatic or semi-automatic; a
bottle of wine in one version; and, according to the DA, the incident took
place in the recording studio. Leonard
Cohen has personally provided interviews confirming that the alleged incident
took place at his home at 3 AM. There
are also interviews where Cohen alleged that Phil Spector actually held a
crossbow on him. I cannot imagine why I
was prosecuted over this issue and view it as blatantly criminal witness
tampering and threats.
1.
As for the
incident at the Carlyle Hotel, I was present and witnessed what I believe has
become a fictitious account. I was in town at that time, staying at a
hotel nearby, heard Phil Spector was in town, and called him. He invited me over to the Carlyle to visit. When I arrived, I was advised to go upstairs
to his room. I entered the room, and
distinctly recall this incident because I initially found his conduct was
absurd, and saw Mr. Spector sitting on a chair, nearly in front of the bathroom
door, with arms crossed across his chest.
I had walked over to the window to look out, turned around, and started
laughing. I asked him what he was
doing. I believe he mumbled something
under his breath and nodded towards the bathroom. I walked over to the bathroom and peaked
in. An individual who I would later
understand was Stephanie Jennings was hiding in the bathtub and/or shower. I asked Phillip what was going on. He explained that she had somehow gained
access to his room while he was not there and may have been going through his
belongings. I suggested that we go
downstairs and file a complaint with the management. I believe we did, although the details of
that particular aspect of the incident are murky, and I also believe a mutual
friend of ours was present for some of what unfolded. That individual frequently served as Mr.
Spector’s companion on trips, witness, and unofficial bodyguard. I have arranged security for Mr. Spector over
the years and am familiar with many members of his security detail. I have also been out with Phil Spector when
members of his security detail or staff were present. I also understand why security for Mr.
Spector was necessary. This is not the
only incident with an obsessive woman involving Phil Spector that I have
witnessed. I witnessed a similar
incident at the Beverly Hills Hotel that may have involved Diane Ogden. There was no gun incident at the Carlyle
Hotel and I did not see a gun in Mr. Spector’s room or hear of one. I am also aware that Stephanie Jennings
phoned Paulette Brandt about this incident and informed her that she and Phil
Spector argued. At no time, and I have
discussed this with Paulette Brandt countless times, did Stephanie Jennings
advise Ms. Brandt that Phil Spector had and/or held a gun on her. Furthermore, I am in receipt of an email from
New York Police Department confirming that if an individual had held a gun on
someone in a New York hotel, they would have been arrested for the gun and
menacing. Alternatively, Ms. Jennings
was escorted from the hotel and viewed as a possible prostitute. I believe that this and other information I
have knowledge of is the reason I have been targeted by former DA Steve Cooley,
intimidated by his investigator during the 2012 proceedings, and also targeted
by former City Attorney Carmen Trutanich who is being investigated by the State
Bar for misconduct in another case. I
also believe the 2012 trial was designed in response to my letter to former DDA
Alan Jackson and scheduled during the DA election campaign. However, as one very well known celebrity
news outlet advised me, no one is all that interested in writing stories about
Leonard Cohen, they already covered the Spector trial, and the only real news
here relates to Leonard Cohen’s contradictory gun stories about Phil Spector
before LA Superior Court. Therefore,
Cohen’s testimony about Phil Spector was not of particular interest to the news
media. The fact that Cohen and his
attorneys testified that I was in receipt of the tax documents (specifically
1099 and K-1s) was of interest to the news media. The more salacious, fictitious tale of a
disgruntled ex-lover, not genuinely in need of tax information, who
successfully got away with embezzlement – although it is my understanding Cohen
and his legal team approached the District Attorney about that so-called issue
, but was alternatively convicted of annoying Leonard Cohen over his
misappropriation of corporate assets and withholding of tax information, and a
woman who may have wanted to attend his concert was more suited to groupie
journalists and news outlets. This
fabricated narrative is obscene. It has
been concocted by misogynists, sycophants, individuals with motive, and people
who appear to spend 24/7 concocting one lie after another. That includes, but is not limited to, Robert
Kory and Michelle Rice who have financially benefitted from their conduct. I have no idea what the City Attorney believes
he is doing at this time but I have asked IRS, FBI, DOJ, and other authorities
to investigate these and other proceedings and prosecute everyone involved who
is not immune. This fraudulent domestic
violence case is nothing other than a federal tax controversy, further
opportunity to sabotage IRS, and another excuse to destroy me and terrorize my
family and friends while inserting Phil Spector’s murder trial into the
proceedings yet again.
8. At
this time, Stephen Gianelli, an operative and/or proxy of Leonard Cohen’s,
continues to relentlessly harass and publicly attack me. He has threatened me over my mother’s death,
lied to LAPD’s Threat Management Unit, and targeted my friend Dan Meade
following his recent death. Dan Meade
submitted a letter to this Court, together with his declaration, addressing
Stephen Gianelli’s psychotic criminal conduct.
Paulette Brandt and Rutger Penick are both witnesses in this case and
have informed the Court of same. They
have been relentlessly harassed by Stephen Gianelli over this case and their
declarations. These proceedings have
exposed us to endless criminal conduct. Investigator
William Frayeh, District Attorney’s Office, concluded that Stephen Gianelli may
have found a “sympathetic ear” about me with Spector’s prosecutor Alan Jackson
and informed me that he would investigate that situation. The results of that investigation are
relevant and material to the alleged uncharged offenses.
9. I
have advised this Court that I intend to consult a computer forensic expert to
review the fabricated email evidence introduced in this case. I did not create, fabricate and/or transmit
that fabricated email evidence to Robert Kory and/or Sandra Jo Streeter. I have previously addressed the fact that
someone lifted an email from my blog that was sent to IRS Commissioner’s Staff
regarding Robert Kory’s declaration that is nothing other than a perjured
document, a narrative related to his conduct and others, and evidence that Kory
is concerned about his potential role in criminal tax fraud and theft of
royalty income. The declaration implicates
serious federal tax matters, theft of millions of dollars of corporate assets, and
Kory’s probable role as a co-conspirator.
Robert Kory and Michelle Rice have served as legal counsel to Leonard
Cohen, paid witnesses who have now converted themselves into self-serving
victims, and benefit from their conduct.
They are most certainly not witnesses and should be viewed as
co-conspirators who have aided and abetted tax fraud, tax evasion, other
criminal activity, and the targeting of witnesses. While the issues related to who transmitted
these emails to Robert Kory and Sandra Jo Streeter have not been litigated, the
prosecution has attempted to use the fabricated evidence to insert extraneous
information, evidence, and uncharged offenses into this case. Therefore, I am asking the Court to sever
issues and/or offenses and/or evidence related to any credible threat involving
Steve Cooley, discussions about that matter between the City Attorney and
District Attorney, and any witness dissuasion involving Sandra Jo Streeter. The prosecution should not be permitted to
circumvent my rights to due process, a fair proceeding, and/or the appropriate
standard related to prosecutions involving credible threats and/or witness
dissuasion. The prosecution should be
forced to prove every element of these alleged offenses, provide me the
opportunity to confront my accusers, and address each and every issue they have
attempted to insert into these proceedings through the content of the
fabricated email evidence and/or hearsay related to Steve Cooley and Sandra Jo
Streeter.
10. Due
to the fact that the prosecution failed to serve me certain documents,
including their Statutory Authority for the Filing of the Permanent Production
Order in the State of Colorado Case (Los Angeles Superior Court Case No.
BQ033717), once I am in receipt of the transcript of the September 8, 2017
proceedings, I will file a writ of mandate with the Court of Appeals. There are two conflicting restraining orders
at issue in this case and one of them is indeed a California domestic violence
order issued without minimal due process.
I object to all false statements raised in the background section of the
prosecution’s memorandum and reserve the right to confront the ever expanding
fabricated narrative and fictitious course of conduct. That includes, but is not limited to, the
allegations related to misappropriation.
The fact that Leonard Cohen obtained a fraudulent default judgment, and
wrongfully converted corporate property and my property to himself, does not
prove that I misappropriated anything whatsoever. During the March 23, 2012 preliminary
hearing, Leonard Cohen personally testified that we were in a purely business
relationship and I never stole from him – just his “peace of mind.” DCA Sandra Jo Streeter was present for that
testimony. Cohen falsely testified that
I failed to file my 2004 and 2005 tax returns when in fact Cohen, and the
corporations he controlled, willfully and knowingly failed to provide me with
IRS required tax forms (1099 and K-1s), corporate balance sheets, corporate
accountings, and corporate tax returns related to the following corporations I
had an ownership interest in for the years 2004 and 2005: Blue Mist Touring Company, Inc., Traditional
Holdings, LLC, and Old Ideas, LLC.
Therefore, Leonard Cohen and his representatives are the individuals who
have obstructed justice with respect to my inability to file my returns.
11. It
is my understanding that the fabricated email evidence, that were allegedly
transmitted to Robert Kory and Sandra Jo Streeter, have been submitted to this
Court. At this time, I am not in
possession of a transcript of the September 8, 2017 hearing but the relevant
portions (based upon my shorthand notes) are as follows:
REDACTED. WILL HAVE ACTUAL HEARING TRANSCRIPT SHORTLY.
12. I
have threatened and/or attempted to dissuade no one regardless of the Deputy
City Attorney’s false assertions regarding that fact.
13. As
investigations into issues raised in this case remain ongoing, I am not in a
position to file certain motions and/or documents at this time. That would include, but is not limited to, a
motion in limine and request for judicial notice. I hope to have those filed in the near future
but the investigations are beyond my personal control.
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 25th day of September 2017 in Los Angeles,
California.
____________________________________
KELLEY
LYNCH
DECLARATIONS AND OTHER EXHIBITS REMOVED.