THE BLOG
05/08/2008 05:12 am ET Updated May 25, 2011

Pellicano Trial: The Closing Arguments

Prosecutor Daniel Saunders stepped up to the podium yesterday morning to finally give his closing argument in a case that started back in November, 2002. Mr. Saunders actually started off strong, going to the audio tape in order to give the jury a taste of Mr. Pellicano in action. The audio tape was a government favorite--the old Matt Williams tape where Mr. Pellicano tells Mr. Williams, a former baseball player, how he can help him get information on Mr. Williams' ex-wife. "I'm gonna listen to things that she's talking about," Mr. Pellicano says on the audio recording, prompting Mr. Williams to consider hiring a different investigator. (He never did, in fact, hire Mr. Pellicano.) And of course, Mr. Pellicano tells Mr. Williams that his methods have to stay just between Mr. Williams and Mr. Pellicano. I guess that's because besides most of entertainment industry and a couple of peripheral players, nobody knew that Mr. Pellicano had the ability to wiretap conversations.

But after playing the Williams' audio recording and going through a list of the government's greatest Pellicano witnesses during the eight week trial, Mr. Saunders began to run into trouble. His first mistake--using a quote from John Adams about how "Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence." Clearly, someone has been watching too many episodes of the John Adams series on HBO. The whole "fact is a stubborn thing" kind of came off as stake, uninspired and just a little bit dull. Unfortunately, that wasn't the last time Mr. Saunders mentioned it wasn't exactly a crowd pleaser, Mr. Saunders went back to it every so often, reminding us that even incredibly intelligent people like John Adams can have an off day.

While the whole "fact is a stubborn thing" quote wasn't exactly Churchill, it wasn't as dull as what came next. Things truly began to go wrong for Mr. Saunders right around the time he promised the jury to go through every single charge in the 79 count indictment. You could almost feel their sense of dread--or maybe that was coming from the audience or perhaps, the judge. We all were aware of how long it was going to take to get through all those charges. All I could think was, thank God the government had cut down the original 110 count indictment or we'd all still be there in that courtroom right now, trying to find some comfortable position on those wooden benches that didn't leave us permanently paralyzed.

But some time between Mr. Saunders' walk down indictment memory lane and his criminal law for dummies class, the prosecutor did make some interesting points about the government's case. He laced into former Sgt. Arneson for helping Mr. Pellicano find information on some of the same criminals that were targeted by the former officer's employer, the LAPD. He argued that Mr. Arneson had let down the citizens of Los Angeles by abusing the powers of his position and that the former officer was nothing more than a dirty cop on Mr. Pellicano's payroll who put his co-workers at risk by providing the detective with privileged law enforcement information. And, he hit Mr. Pellicano and Mr. Turner very hard as he described how the two had worked together to wiretap the most private conversations of citizens who had no idea that anyone was listening. (I suppose that was because this all happened before the government got in the business of warrantless wiretaps.)

And then there were some interesting attempts to cut off defense arguments that are yet to come. Mr. Saunders admitted that because the F.B.I.'s first search warrant in November of 2002 was a limited search warrant that didn't allow the bureau to seize computers from Mr. Pellicano's war room, quite a bit of evidence was potentially missed and then subsequently destroyed by Mr. Pellicano. He also admitted that there were quite a few recordings of Mr. Pellicano's that the F.B.I. was unable to decrypt--which has to make you feel good about how they're dealing with the whole terrorist threat. And, there was his throw away line about how this was a conspiracy and how the government hadn't actually charged everyone who might have been involved (or basically financed) this whole wiretapping and illegal investigation business that Mr. Pellicano allegedly had going here in town for over thirty years.

"There's been a lot of questioning about who was or wasn't charged with what in this case," Mr. Saunders acknowledged in a booming voice. "It's your job to decide whether the government proved the charges. But, it's not your job to decide who should have been a defendant and not a witness." No, that was the government's job and frankly, I'm not so sure they did such a good job of it. They used an ex-employee named Tarita Virtue, who admitted to transcribing wiretapped calls and who could have been prosecuted by the government had she not struck a deal, to testify about over 300 calls that she listened to in the Bo Zenga matter. (There were also other significant problems with her credibility--including a whole lot of pictures of her in her underwear on the web after she was supposedly in hiding because of fears that Mr. Pellicano would harm her.) They had Ms. Virtue also testify to summaries she typed up of many of those calls--including private conversations between Mr. Zenga and his attorney, Mr. Dovel. But the government pointedly avoided asking Mr. Grey, who was the defendant in that lawsuit, about things he'd told the F.B.I., including the content of phone calls he'd had with Mr. Pellicano regarding the Bo Zenga matter. (He was also asked very few questions about the Gary Shandling lawsuit, despite his admission that he'd received advice not to settle the matter from Mr. Pellicano. Nor was he asked about Mr. Shandling's testimony that as far back as 1995, Mr. Grey suggested hiring Mr. Pellicano when Mr. Shandling was involved in litigation with his ex-girlfriend and employee, Linda Doucett.)

The government also decided not to call the most obvious witness of all, Mr. Grey's attorney, Bert Fields, who worked with Mr. Pellicano for years on a wide variety of cases and was named by a number of witnesses as the man who had suggested they hire Mr. Pellicano. Instead, the jury heard from the clients of Mr. Fields, some of whom actually testified to hearing wiretaps. There was Adam Sender who testified about listening to wiretaps but who wasn't indicted, and Susan Maguire, also not indicted, as well as Andrew Stevens, also not indicted. Oddly enough, the government also called Michael Ovitz, who although he took the stand and said he'd both hired Mr. Pellicano to dig up dirt on his opponents and paid him cash and checks for his efforts, is also not charged in this matter. (Of course, Mr. Ovitz denied being aware of any illegal activity by Mr. Pellicano.) In a strange contrast to how the government treated Mr. Ovitz during his direct testimony, Mr. Saunders actually pointed to Mr. Ovitz today in talking about Mr. Pellicano's misdeeds, telling the jury that "Michael Ovitz paid Defendant Pellicano to get information on Anita Busch to 'find out when the other shoe would drop.'"

Naturally, Mr. Saunders still didn't provide any explanation for the jury why Mr. Ovitz wasn't charged or any of the other clients who testified before the jury because, as he pointed out earlier in the day, it's not their job to question the charges in this case. And, Mr. Saunders is right about that. It was his job back when he first began to see the evidence in this case before all the statute of limitations had run against these potential defendants, to ask the difficult questions about who should be charges in this case and to made the very difficult choice about whether to go after some of the most powerful people in the Los Angeles community who retained Mr. Pellicano. Obviously, Mr. Saunders opted to go a different route. He chose to go after the private detective to the stars, rather than his clients, as well as this bottom rung of Mr. Pellicano's employees--this allegedly conspiracy consisting of a poorly paid, allegedly corrupt police officer (or two), a long time phone company worker (or three) and a freelance computer geek who barely left his home. Mr. Saunders is right. It isn't the job of the jury to be sitting around after the fact having to wonder about why they've seen a parade of Mr. Pellicano's incredibly wealthy clients--including entertainment executives and celebrities--walk in and out the courtroom even after admitting to having hired Mr. Pellicano or in some cases or even after admitting to listening to wiretaps. It's not their job to question why Andrew Stevens could go up on a roof, listen to one of Mr. Pellicano's wiretaps of entertainment attorney John LaViolette speaking to his client, laugh about it with the private detective and then just bounce on out of the courtroom a free man. It was Mr. Saunders job, if he chose to do so, to investigate fully and indict the incredibly wealthy people in this town who spent a fortune making Mr. Pellicano--and not his merry band of employees--an incredibly wealthy man and a warmly regarded member of their community.

Bottom line here is that only three people involved in the entertainment industry were charged in this case--despite the fact that almost all of Mr. Pellicano's clients were somehow related to the entertainment business. There were only really two industry insiders charged in this entire case and one entertainment attorney--director John McTiernan, because blatantly he lied to the F.B.I. and then refused to cooperate and music producer Bob Pfeiffer, because frankly, Mr. Pellicano recorded most of their conversations. And of course, Terry Christensen, the name partner at Christensen, Glaser, because again, the government actually got their hands on over thirty recordings by Mr. Pellicano of their conversations. (Given the potentially incriminating nature of those many recordings, you have to think that even Mr. Saunders couldn't help but indict Mr. Christensen.) But in general, it seems that if you were in the entertainment industry and you still were hot--always helpful in this particular town--it seems you got a pass in this case.

When he wasn't painfully explaining and re-explaining the elements of RICO or a conspiracy allegation or telling the jury what the government didn't have to prove, Mr. Saunders did manage to do some damage to former Sgt. Mark Arneson's defense. Noting that testimony by the former officer that Mr. Pellicano paid him and his company to provide security services to the detective's wealthy celebrity clients was really ludicrous in light of the fact that Mr. Arneson presented no evidence regarding these services. Mr. Saunders questioned why Mr. Arneson had introduced no business records regarding the alleged security work he did for Mr. Pellicano's clients or testimony from the off-duty cops Mr. Arneson allegedly paid to assist him with his off-duty business. "So where are all these cops who got paid?" Mr. Saunders asked. "I assume they're with his business records." Mr. Saunders' saracastic remarks regarding Mr. Arneson's lack of evidence of his innocence were followed by Mr. Saunders' well timed admission that "of course, Mr. Arneson doesn't have to prove anything and I'm not suggesting he does."

Mr. Saunders spent most of the day, however, slowly, ever so slowly, going through each and every count in the massive indictment and even at one point, reading from his notes to the jury the actual elements of a particular count. Unfortunately, Mr. Saunders fell into the trap getting lost in the computer runs, phone logs, and even the occasional dull recording instead of focusing on the human elements of the government's case. There was a lot of testimony during this trial about computer runs and phone numbers and all kinds of wiretapping, but with just a few exceptions, Mr. Pellicano's alleged victims kind of got lost in the shuffle.

Mr. Saunders' most effective effort to really bring out the stories of the alleged victims of this case was when he focused on the testimony by Bo Zenga's attorney, Mr. Dovel, who spoke about how "chilling" it was to see notes of your own private conversations. Mr. Saunders also reminded the jury about how Mr. Dovel had summed up the devastating effect of having a legal opponent know everything about your case. As Mr. Dovel said during his testimony, information is everything in litigation. Mr. Saunders effectively summed up the point, noting that thanks to Mr. Pellicano's wiretapping abilities, "his side knew everything that the other side did." But then again, that left open the question of why Mr. Pellicano's side," particularly as it pertained to the Bo Zenga litigation, wasn't sitting in court next to Mr. Pellicano.

Mr. Saunders big finish included, yep, a shout out to John Adams and his stubborn fact brigade as well as a reminder to the jury to not be fooled by the evil doings of the defense attorneys as they try to pick a part the government's case. Mr. Saunders told the jury that he expected the defense to try and argue about particular evidence --darn those stinkin' conspirators--and to basically disregard the totality of the evidence. Mr. Saunders closed by reminding the jury that what the attorneys say isn't evidence (particularly the defense attorneys) and that in considering what they hear today, they sould ask themselves whether what is said is consistent with the totality of the evidence. Yep, that's pretty much what he said and it was just as compelling of an admonition in person.

Mr. Hummel, Mr. Arneson's attorney, is up first for the defense tomorrow. Argument starts at 8:00 sharp. STAY TUNED FOR TODAY'S OTHER POSTS.....

Read all the coverage from inside the Pellicano courtroom