Well folks, it seems that Mr. Saunders' day long grilling and attempted impeachment of former Sgt. Arneson has come back to haunt him. After introducing documents of a bankruptcy filing that Mr. Saunders claimed was signed and filed by Mr. Arneson and that Mr. Arneson strenuously and repeatedly denied filing, the government today brought back a witness, Phyllis Miller, who was alleged aware of Mr. Arneson's bankruptcy filing. After she finished testifying to trying to arrange a refinance of Mr. Arneson's home and to being aware of his bankruptcy filing, Mr. Arneson's attorney, Chad Hummel, introduced evidence that Ms. Miller had fraudulently filed a bankruptcy filing on Mr. Arneson's behalf. The judge called an immediate sidebar and then returned to the bench and advised Ms. Miller that she needed to either speak with a court appointed federal defender before continuing with her testimony or hire an attorney. After Ms. Miller was sent out of the court room to wait for a court appointed attorney, Mr. Hummel noted that Ms. Miller and her husband had attempted to defraud Mr. Arneson of his property and that this so-called bankruptcy was clearly their work and was filed without Mr. Arneson's knowledge--as he'd testified under oath. Mr. Hummel noted that Mr. Saunders created this problem himself by so vehemently pursuing this issue and now, he's left with the consequences. Mr.Hummel said that serious damage was done by the government to his client's credibility on this issue and he needed to ask this witness questions to repair it. The judge replied that "I don't disagree, I just need to make sure that this witness is advised of her fifth amendment rights before continuing."
Right now, we're looking at a possible mistrial and waiting for the witness to speak with her attorney. The judge has ordered her not to leave this floor or to speak with the government attorneys or F.B.I. agents. Yes folks, it's a bombshell and it comes just as the government was ready to call some of its last rebuttal witnesses..... STAY TUNED.
UPDATE -- Part 2:
It's a crazy day here at the Pellicano trial. Just yesterday, we were heading for closing arguments to begin on Monday. But today, following testimony by a prosecution witness called to further impeach Sgt. Mark Arneson's credibility, the jury had been sent home early for the day and told not to return until Monday. After the jury left the room, Mr. Hummel addressed the judge regarding the current possibility of a mistrial. The judge told the lawyers that she hoped they didn't have any plans for the weekend because they would have to file briefs with her regarding the testimony of a Phyllis Miller, a witness called by the government to further impeach Officer Arneson. After her testimony on direct examination by Mr. Saunders, Ms. Miller was asked on cross examination by Mr. Hummel about whether it was her husband's handwriting on the bankruptcy petition allegedly filed by Mr. Arneson. Within just minutes, it became clear that Ms. Miller had admitted to being involved in some manner in preparing a fraudulent bankruptcy application on Mr. Arneson's behalf. The judge called in a court appointed attorney for Ms. Miller who quickly advised her to not testify any further.
With the jury no longer present, the judge advised Ms. Miller's attorney that his client is ordered to be present in court on Monday morning by 8:00 and if she is not present, it will be considered a crime. The judge then publicly asked Mr. Hummel about whether he'll file something by Monday. "Your Honor," Mr. Hummel said pleasantly, "we find ourselves in a novel situation. We'll do our best." The judge nodded, seemingly agreeing that the situation was indeed novel and somewhat dire considering the government had just called a witness who was probably now subject to criminal prosecution for fraudulent bankruptcy filings and potentially for perjury. Mr. Hummel made a formal motion for a mistrial on Mr. Arenson's behalf and then said "it is the only remedy."
Mr. Saunders was silent.
The judge replied, "The remedy is more than striking the direct testimony. Whether it's a mistrial, I don't know." The court then took a fifteen minute break, ordering the lawyers to return to court after the break to discuss potential jury instructions.
As soon as the lawyers left the courtroom, they broke off into their separate groups--with the defense lawyers looking happy and Mr. Saunders rushing down the hallway with his cell phone in hand.
UPDATE -- Part 3:
Back in the courtroom with the spector of a mistrial hanging over the trial, the judge still struggled to go ahead with revising final jury instructions. She actually joked with Mr. Hummel about the day's events, saying "Monday, we're giving instructions and you [Mr. Hummel] may or may not be here."
The judge briefly entertained a couple of possibilities regarding whether there was any way Ms. Miller, who is now facing possible fraud charges, could possibly testify on Monday under certain conditions. But immediately following some conversation about what might happen with Ms. Miller, the judge admitted that she wasn't sure what was going to happen on Monday and that she wasn't committing to any of the proposed cures until she'd read briefs from both sides. "A mistrial is obviously a possibility," the judge said. "I don't know how great a possibility." And although she made clear that she'd wait for both the defense and the prosecution to brief the issue, she was considering having a witness actually tell the jury that the signature on Mr. Arneson's bankruptcy petition was, in fact, forged and that "Mr. Arneson was telling the truth." That sentence must have been particularly satisfying to former Sgt. Arneson who only a few days ago, had repeatedly insisted under particularly harsh cross-examination by Mr. Saunders, that he was telling the truth and that he'd never filed for bankruptcy.
Mr. Saunders, who was uncharacteristically quiet during much of the discussion, finally stood up and suggested that the judge should consider looking at giving an instruction to the jury that they should disregard any testimony given regarding the bankruptcy issue. The judge pretty much dismissed the idea, noting that while she'd told the jury to disregard a lot of things during this trial, she couldn't really go that route with this issue. "This one is a pretty big," she said pointedly.
Mr. Saunders then made sure to let the court know that while he appreciated the situation in which the government now found itself--that is facing a possible mistrial after years of preparation--he wanted the court to know that the government didn't foresee this particular situation. Basically, he didn't foresee that this witness, who was interviewed by the F.B.I., would turn out to be a possible criminal and that her husband, was currently in jail for doing to a whole lot of people what he'd tried to do to Mr. Arneson.
The entirety of the situation wasn't lost on the judge. "Clearly Mr. Hummel did a better investigation," the judge noted, pointing out something that had become painfully obvious to both Mr. Saunders and Mr. Lally.
"Thank you, your Honor," Mr. Hummel said politely. He then went on to explain his position regarding a potential instruction to the jury to try and fix the fact that the government had probably already convinced the jury that Mr. Arneson had repeatedly lied about signing the bankruptcy application. In fact, it was right after Mr. Saunders aggressive cross-examination of Mr. Arneson on the whole bankruptcy issue that Mr. Saunders actually threatened to have Mr. Arneson's bail revoked and have him thrown back in jail on perjury charges. (That was the time when the juror heard Mr. Saunders say the word perjury and she had to represent to the judge that she could disregard having heard that word....)
Mr. Hummel finally told the court that while he was ready to brief the issue for Monday's hearing, he still wanted it on the record that for the last five years, "we've heard threat after threat on this issue [from the government]. For the record, I have to hit the books, but I don't see any instruction that will remedy this situation," said Mr. Hummel. "This is clearly the result of an inadequate investigation by the federal government."
And so, on Monday, the court noted that the witness will return and she will consider whether to declare a mistrial. It's really incredible that after six years of investigation, the government managed to call a witness to impeach a defendant's testimony without checking that witness' criminal history. Mr. Hummel has said repeatedly that his client denied having filed a fraudulent bankruptcy application. He said it five years ago when Mr. Arneson first spoke with the government and he said it before Mr. Saunders proceeded to seriously delve into the issue on cross-examination in his effort to prove to the jury that Mr. Arneson was a liar. And, despite all the times that Mr. Arneson insisted that the signature on the document was forged, the government refused to investigate his claims. Frankly, it makes one wonder what else they forgot or didn't bother to investigate.
Is it possible that there is all kinds of other evidence that the government overlooked in their desire to prosecute these few, rather insignificant Pellicano associates who were so down on the ladder that they scored truly pathetic financial benefits from their alleged criminal activity? Is it possible that in questioning Mr. Pellicano's clients, the government didn't bother to really ask them really hard questions because the government was focused on charging this truly bottom rung of Pellicano associates and not any of Mr. Pellicano's powerful and influential clients? And given what's happened with this prosecution, can you blame them? Did the government really even want to charge Mr. Pellicano's wealthy clients given their deep pockets and endless resources? Did they go after people like Mr. Arneson and Mr. Kachikian and even Mr. Turner because it was easier? And if so, can you even imagine what's going to happen in the courtroom when Mr. Saunders and Mr. Lally finally prosecute Mr. Christensen and they face off against a defendant with not only deep pockets, but an arsenal of attorneys ready and able to research any legal issue at a moment's notice? Even with over thirty tapes of Mr. Christensen chatting away with Mr. Pellicano about wiretapping Lisa Bonder Kerkorian, you've still got to wonder how that one is going to play out given what happened today.