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