Even after the judge admonished Mr. Kachikian to put a lid on his
commentary and threatened him with serious sanctions, Mr. Kachikian
continued to hold up pretty well under cross-examination by Mr.
Saunders. With the judge learning forward, listening carefully to his
every response, Mr. Kachikian continue to still manage to frustrate Mr.
Saunders by correcting the prosecutor's use of certain words, his
phrasing and continually finding ways to not directly answer questions.
"So, everything you billed or shipped to defendant Pellicano was
related only to Telesleuth?" Mr. Saunders asked quickly, as if there
was no other answer for Mr. Kachikian than a simple "yes." But Mr.
Kachikian wasn't quite ready to surrender. "No," Mr. Kachikian
replied, "there were probably a few other things." And then the
computer expert began to elaborate on what else he was sending to Mr.
Pellicano when a frustrated Mr. Saunders interrupted with "Sir, I'm
going to cut you off. I'm trying establish a simple fact."
Apparently, Mr. Saunders didn't anticipate that this seemingly nerdy
and anti-social man, with his Birkenstocks, bald head and 1980s
attire, would be such an effective witness. In fact, Mr. Kachikian's
refusal to accept Mr. Saunders' interpretation of his grand jury
answers and his insistence that Mr. Saunders use the appropriate geek
computer language seemed to become an irritating problem for the
prosecutor who probably expected to just ram his questions down Mr.
Kachikian's throat without the computer guy putting up much of a
defense. "I'm troubled with the way you're wording that as it relates
to myself," Mr. Kachikian said of a particularly inflammatory question.
Without his lawyer, Mr. Braun having to say a word, Mr. Saunders
agreed to rephrase. In fact, during most of Mr. Saunders' cross of Mr.
Kachikian, Mr. Braun could have taken the time to grab a bite to eat.
Mr. Saunders did manage to get a few points off of Mr. Kachikian.
After several questions, he got the computer expert to admit that he
received quite a bit of money from Mr. Pellicano over the years that he
worked for him. Over the course of five years working for the private
investigator, Mr. Kachikian apparently pocketed over $300,000. Now, if
this were any other trial, one would imagine that the jury would find
this sum of money impressive and might infer that Mr. Kachikian was
somehow involved in more than just coding software and developing
hardware for Mr. Pellicano. But given the fact that the jury has heard
witness after witness talk about paying Mr. Pellicano hundreds of
thousands of dollars for just several months worth of work, one could only
help but wonder why if Mr. Kachikian was in fact part of the
wiretapping conspiracy, he hadn't taken home a bigger paycheck.
Because based on Mr. Saunders' questions today, it sounded as if Mr.
Kachikian was the mastermind behind the telesleuth program that Mr.
Pellicano used to wiretap his targets and to elicit large sums of money
from his clients for the service of listening in on the calls of their
adversaries. Mr. Kachikian admitted to Mr. Saunders that he was "well
paid," but added that "I could have made more." One has to wonder if
he came to that conclusion before or after he heard about how much
money Mrs. Maguire paid Mr. Pellicano to "investigate" her husband or
if it was Mr. Sender's payments to Mr. Pellicano that really made him
reconsider the money he received for the work he did on Telesleuth.
The real problem with Mr. Saunders' cross examination of Mr. Kachikian
is that he didn't bother to listen to the computer expert's answers.
He was admonished several times by the judge and by the court reporter
to wait for Mr. Kachikian to finish his answers, but Mr. Saunders was
assuming that Mr. Kachikian's answers would be useless and that it was
his questions that mattered. While that's been true with the large
majority of the witnesses in this case -- particularly when he crossed
former Sgt. Arneson -- it wasn't true today because Mr. Kachikian managed
to mangle and confuse everyone with the detailed responses he gave to
most of Mr. Saunders' questions. And, even if he wasn't telling the
truth about something, he managed to convey an honorable sense of
loyalty or at least a believable naivete in many instances. And so, if
ever there was a time that a prosecutor needed to take a minute to
listen to an answer in order to formulate his next question, this was
it. Many of his exchanges with Mr. Kachikian reminded me of watching a
morning talk show host asking intense questions of a celebrity guest or
politician (which I guess has become the same thing) and then rushing
on to his next question without waiting for a reply.
There was at least one Perry Mason moment in trial when Mr. Saunders
ridiculed Mr. Kachikian's contention that he'd developed Telesleuth for
use by law enforcement and that it was a state-of-the-art program,
enforcement. With sarcasm dripping from his every utterance, Mr.
Saunders then went on to present a hypothetical scenario to Mr.
Kachikian on how his state-of-the-art telesleuth program never would
have been useful to agents out in the field. Noting that the program
included a MAC computer, a black box and that the program only work on
land lines, not cell phones, Mr. Saunders asked Mr. Kachikian how such
a program could have been useful to law enforcement. Mr. Kachikian
refused to take the bait and after a look from the judge, Mr. Saunders
announced that he'd move on to another question.
By the end of the day, Mr. Saunders did manage to establish that
despite the fact that Mr. Kachikian found himself under indictment for
wiretapping and conspiracy, the computer expert who'd just testified
that Mr. Pellicano had gone behind his back and apparently illegally
used his device without his knowledge, somehow remained loyal to Mr.
Pellicano. He told the jury that even after he'd been interviewed by
F.B.I. agent Ornellas, he still wasn't aware of the full blown
wiretapping investigation into Mr. Pellicano. He said that the extent
of the investigation didn't become clear to him until he made an
appearance before the grand jury in 2003. "I wasn't aware of a full
blown investigation until at the end of the grand jury," said Mr.
Kachikian, sounding pathetically honest. "And then Oh my God, it all
set in, this is real."
Mr. Saunders wondered incredulously how it was that Mr. Kachikian
didn't read or see anything about the investigation in the papers or on
television. But had he actually been listening to this guy all day, he
could have anticipated his answer. "I don't have a T.V. or get a
paper," answered Mr. Kachikian, again soundly remarkably candid and
remarkably geeky.
But the fact remained when Mr. Kachikian was on the stand, that it was
still difficult for him to accept that his former employer and friend,
Mr. Pellicano, had lied to him about how the detective used the
telesleuth program. It was clear from Mr. Kachikian's testimony how he
felt about ex-Pellicano employees who'd turned on their former boss.
And when Mr. Pellicano got up to ask Mr. Kachikian a few questions, he
sought to establish how little the computer expert had known about what
the former private eye to the stars was doing with his software. "If
Mr. Pellicano asked you to put in specific software, what did you do?"
"I did it," said Mr. Kachikian. "And if you didn't do it?" asked Mr.
Pellicano. "If I didn't do it, he would yell at me." Finally Mr.
Pellicano asked Mr. Kachikian what would happen when the computer
expert asked him questions about what Mr. Pellicano wanted to do with
the software. "He'd either shut off or not talk to me," said Mr.
Kachikian.
Mr. Kachikian will make a cameo appearance tomorrow morning to
demonstrate the Telesleuth player and to counter Mr. Saunders
accusations that he retained Telesleuth software and hardware and all
kinds of information that he was supposed to hand over to the
government. Mr. Kachikian contends that he destroyed all of the
Pellicano files at the direction of his client and that the only reason
he had any Telesleuth materials at this point was because Mr.
Pellicano's former attorney provided them to him.
After that folks, it's the rebuttal case and then some surrebuttal by
the defense which is sure to be brief given their limited funds. The
government expects to start closing arguments on Monday after the judge
gives jury instructions. So, the end is in sight... although with this
crowd, you never quite know what might happen next. STAY TUNED FOR
TOMORROW WHEN WE SEE IF THIS TRIAL IS GOING TO END ANYTIME SOON....
Read all the coverage from inside the Pellicano courtroom.