Part 1:
At this time, the judge had denied without prejudice Mr. Hummel's motion on Mr. Arneson's behalf for a mistrial. After Phyllis Miller, the government's witness from last week, agreed to not take the fifth and continue to be cross-examined on whether she and her husband had forged Mr. Arneson's signature on a bankruptcy document, the judge decided that the trial would go forward. Despite Mr. Hummel's argument that Mr. Saunders' cross-examination of Mr. Arneson had been "a hatchet job" which was extremely prejudicial, the judge opted to go on with the trial. She did offer two remedies to Mr. Hummel which he is currently considering during this twenty minute break. She offered to strike all of the government's very damaging cross-examination of Mr. Arneson on the issue of whether he'd signed the bankruptcy petition. Mr. Arneson was cross-examined for over an hour by Mr. Saunders about his testimony that he'd never signed the bankruptcy petition. The judge also offered to keep in the record Ms. Miller's testimony that it was her husband's handwriting on the bankruptcy petition--effectively allowing testimony into the record demonstrating that Mr. Arneson had not been lying about never filing for bankruptcy. And, she offered to submit what's known as a curative instruction to the jury--telling them something that would help them not remember the hour of testimony where it looked like Mr. Arneson was a complete and total liar. Given the dramatic nature of Mr. Saunders' cross-examination of Mr. Arneson, she probably should have offered to inject the jury with some drug to help them forget that particular day of the trial since that's the only thing that's going to actually erase that particular testimony from their mind.
Mr. Hummel seemed distressed when he approached the podium to argue against the judge's tentative decision, saying that this was the third time that the government had improperly tried to impeach Mr. Arneson's credibility during this trial. He noted that the government had failed to properly investigate the bankruptcy matter and that despite that fact, Mr. Arneson had been subjected to relentless, ruthless and scathing cross-examination by Mr. Saunders. He argued that the cross-examination had left the jury with the indelible impression that Mr. Arneson could not be believed. And on that point, one would have to agree. The cross-examination of Mr. Arneson by Mr. Saunders lasted for over an hour and even included questions which accused Mr. Arneson of not telling the truth. (Basically, Mr. Saunders accused him of lying about not signing this document for over an hour. And, Mr. Arneson kept insisting that it wasn't his signature, despite what appeared to be evidence to the contrary.
He pointed to Mr. Saunder's statement in front of a juror in which he accused Mr. Arneson of perjury after Mr. Arneson refused to admit that it was his signature on the bankruptcy document. He also pointed to another incident in which the government had questioned Mr. Arneson about a statement he made during an internal affairs inquiry by the LAPD--such statements are not allowed to be used in court against a police officer. Mr. Hummel closed by noting that the all of the governments' conduct towards Mr. Arneson had been cumulatively prejudicial and that even after hearing Ms. Miller's testimony, the government is still insisting that they everything was done in good faith. (It does seem difficult to swallow the good faith argument given that Ms. Miller was clearly not investigated completely before the government put her on the stand. So, I guess the court is supposed to just excuse the government's conduct because they didn't purposely put on a witness who was untruthful. Hmm...have to think about that one.)
Mr. Hummel concluded before the break by suggesting that her honor should be concerned about how the investigation in this case was conducted. And given Ms. Millers' testimony, she probably should take a moment to think over the issue. The government conceded little in its argument, but agreed to strike portions of the cross-examination. However, even after everything that's occurred, Mr. Saunders pointed to the fact that Mr. Arneson's attorney could still cross this witness since she's not taking the fifth--as if that would be a sufficient remedy for the potential prejudice caused by his cross of Mr. Arneson on the bankruptcy issue.
Part 2:
After the break, Mr. Hummel returned with a laundry list of requests from the court in an effort to remedy the fact that Mr. Saunders had effectively made Mr. Arneson look like a liar during his cross-examination of the former officer. Mr. Hummel requested that the judge instruct the jury that Mr. Arneson had been telling the truth about not filing a bankruptcy petition. He also requested that the court advise the jury that the government's line of questioning regarding Mr. Arneson allegedly filing a fraudulent bankruptcy petition was wrong. Finally, Mr. Hummel requested that the court advise the jury that Ms. Miller has acknowledged that it was her husband, not Mr. Arneson, who signed the bankruptcy petition.
The judge denied all of Mr. Hummel's requests for an explanatory jury instruction and also denied without prejudice his motion for a mistrial. (That means, as the judge pointed out, that she could change her mind on the issue.) The judge then suggested that she would be offering two remedies to Mr. Arneson. She said that she'd strike the portion of Mr. Arneson's cross-examination on the issue of the fraudulent bankruptcy. But apparently, she's going to do so without any explanation to the jury which means that they will probably merely remember the sum and not the particulars of Mr. Arneson's disastrous cross-examination testimony. And, she's willing to strike Ms. Miller's direct testimony, but to allow Ms. Miller's cross-examination testimony that her husband signed the bankruptcy application and not Mr. Arneson.
So, even though Mr. Hummel doesn't get a mistrial for Mr. Arneson, he will get the opportunity during his closing statements to point out to the jury that Mr. Arneson's testimony that he never filed for bankruptcy remains unrebutted--as in there was no cross on the issue because everyone is supposed to forget the cross-examination on the issue because it turned out to be incorrect. (Well, he can't say that last part about the incorrect cross, but he'll definitely go with the part about the testimony remaining unrebutted.) Then, Mr. Hummel can also argue that Ms. Miller's testimony directed supported his client's claim on direct that he never filed for bankruptcy since she testified that her husband had signed the bankruptcy petition--specifically, she testified that it was her husband's handwriting. By the way, that same husband is busy serving an eleven year sentence for forgery and fraud.
As for the government, Mr. Saunders argued effectively that an instruction regarding the truthfulness of Mr. Arneson's testimony would be improper. The government also argued effectively that testimony by Mr. Arneson regarding his precarious financial condition unrelated to the bankruptcy filing would remain in the record.
There was one particularly odd thing about today's court proceedings was that the witness, Ms. Miller, who had told the court she'd take the fifth amendment on Friday, now decided to testify before the court. (Ms. Miller also had to switch lawyers as the federal public defender said that he couldn't defend her because his office was representing another witness in the trial. The office felt that it was a conflict, so the judge appointed another attorney to defend Ms. Miller.) Despite the advice of the federal public defender, the new attorney stated to the court that his client was now willing to testify and would not be invoking her fifth amendment rights. Mr. Hummel called for a brief meeting with the new lawyer--probably to point out the evidence that he had to impeach her credibility--but the lawyer returned to court and again said that his client was willing to testify. Mr. Hummel then inquired as to what type of investigation the government had conducted over the weekend, since he was aware that Mr. Arneson's ex-wife had been contacted by government agents. Mr. Lally said that the government did have some 302's regarding their investigation, but he'd inadvertently left them on his desk. He represented to the court that they would be turned over to Mr. Hummel by the end of the day. So, perhaps, one could speculate that there was something that came up in the government's last minute investigation that persuaded Ms. Miller that she'd be okay to go forward with her testimony. In any event, it seems that she won't be going back on the stand and that Mr. Hummel is going to try and rehabilitate his client's credibility during his closing argument.
Meanwhile, all the lawyers are continuing to meet to hammer out jury instructions. The judge has instructed the attorneys that they will be staying in court until the instructions are completed.
Read all the coverage from inside the Pellicano courtroom
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Posted April 28, 2008 | 01:04 PM (EST)