04/23/2008 05:12 am ET Updated May 25, 2011

Pellicano Trial: The Prosecutors Take The Stand In Mistrial Motion

In a twist that clearly Prosecutor Dan Saunders and Kevin Lally didn't see coming, Chad Hummel called both prosecutors to the stand this morning to question them about their failure to turn over evidence to the defense. With the jury taking an unscheduled day off, the Judge held a hearing on Mr. Hummel's motion, made on behalf of client Mark Arneson, for a mistrial based on the government's failure to turn over a tape obtained from the City Attorney's office of Mr. Arneson's statements made during the course of a 1999 Internal Affairs investigation. Mr. Hummel argued that the government was not permitted to use those statements under the Garrity case and therefore those statement would be immune from any criminal prosecution. Then, Mr. Hummel argued that not only had the government heard a portion of the tape, but that Mr. Saunders used the information in the tape to impeach Mr. Arneson when the former Sergeant took the stand in his own defense last Friday.

Before Mr.Hummel started calling witnesses, Mr. Saunders maintained that while the government was in possession of the tape of Mr. Arneson, there was no violation by the government in not handing the tape over to Mr. Hummel. Mr. Saunders argued that while some of the contents of the tape were listened to by Mr. Lally, it was only seconds, and then the tape was given over to another prosecutor and sealed. Mr. Saunders then argued that the government never gave the tape to the defense because Mr. Hummel made it clear on several occasions, that he was already in possession of all evidence in possession of the City Attorney related to Mr. Arneson's case.

Then things in court got incredibly surreal with Anthony Pellicano watching with interest as Prosecutor Kevin Lally was subject to a grilling by Chad Hummel. After the two lawyers exchanged pleasant "good mornings," the relationship between the two men became somewhat strained as Mr. Hummel questioned Mr. Lally about why he'd listened to compelled statements by Mr. Arneson on an audio tape and then not told the defense that the government had the recording. Mr. Lally stuttered through his answers to the first few questions, trying to remember who'd written what on the envelope containing the audio recording of Mr. Arneson's statements to Internal Affairs. Then there was the issue of how many minutes of the tape recording Mr. Lally had actually heard. Was it five seconds as he first said in open court? Was it less than five seconds? Was it enough for him to have a nice long chat with Mr. Saunders before Mr. Saunders began his cross-examination of Mr. Arneson? (Mr. Saunders was adamant that Mr. Lally never chatted with him about his cross examination of Mr. Arneson, boasting to the Judge that he had no trouble thinking of his own series of questions to bring out the numerous lies told by Mr. Arneson on the stand.)

Mr. Lally actually testified to listening to five seconds of the tape, hearing Mr. Arneson's name and then sealing the whole dirty mess up in a nice plastic evidence envelope and giving it to someone else. The whole process of disposing of this audio tape was so thorough that apparently, Mr. Saunders never even heard about it. He was left to prepare for his cross-examination of Mr. Arneson all by his lonesome. Yes, he knew there was a box of materials from the City Attorney related to Mr. Arneson, Mr. Saunders admitted under direct examination from Mr. Hummel. But, frankly, he was too busy listening to Mr. Pellicano's tapes of Mr. Arneson to bother with the box. And, given what we've heard in trial, it's likely that the quality of any of Mr. Pellicano's recordings was far superior to anything put together by the LAPD.

Mr. Saunders seem to actually enjoy being on the stand, jousting with Mr. Hummel, finding nimble ways to add paragraphs to questions that could have easily been answered with a simple "yes" or "no." As the two discussed their conversations about discovery obligations, Mr. Hummel actually joked that perhaps he should refer to himself in the third person--a not so subtle nod to the insanity of the court's ruling that Mr. Pellicano do just that.

Basically, Mr. Saunders rejected the argument that the government had violated any rules in failing to tell the defense that it was in possession of Mr. Arneson's audio tape, noting that it was clear to him that the defense already had the audio tape. And yes, that argument doesn't make a lot of's not just you. Standing on stronger ground, Mr. Saunders explained that he'd never listened to the audio tape, heard about it or used anything in it to prepare for his cross. Given the often discombobulated government case presentation, this argument by the prosecutor seemed somewhat more persuasive than his other point. But finally, Mr. Saunders admitted that there were aspects of his cross-examination that perhaps, maybe, under certain circumstances, might have ventured into the area of the IAD investigation into Mr. Arneson. Admitting that he wasn't clear on all the law in this area because, uh well, there really isn't a because here since he's a lawyer and a seasoned federal prosecutor who is actually supposed to know the law in areas like this. So, I just have to start that sentence over. Anyway, Mr. Saunders said that if he had his cross-examination to do again, he'd "probably wouldn't go into that area again."

Besides being treated to testimony from both of the prosecutors in the case, we also got a chance to hear from Agent Ornellas, Agent Lyle and a host of other government witnesses who all testified to reviewing documents at the city attorney's office, making sure they didn't contain any compelled statements by Mr. Arneson and then getting the City Attorney's office to copy a bunch of documents---including one that contained a compelled statement by Mr. Arneson.

The Judge, who seemed ready to pluck out her own eyeballs at the stupidity of the government not turning over this evidence and who has been reading motions on this case around the clock, also wasn't happy with Mr. Hummel. "What would you like to do next?" She asked Mr. Hummel, her voice dripping with irritation. Mr. Hummel pretended not to notice as he suggested that he might need more than one day to finish up the hearing. At that point, the Judge clenched her teeth together and said with a deadly serious stare, "this hearing will finish today." And then, just in case Mr. Hummel had missed it, she said it again.

So far, it seems as if the Judge doesn't believe that there's enough evidence to show that Mr. Saunders used the audio tape improperly as the basis for his cross-examination of Mr. Arneson on the IAD investigation. She seems to accept that Mr. Saunders just happened to stumble on the fact that Mr. Arneson gave a statement to IAD back in 1999. But, she's having problems with the fact that one part of the prosecution had access to a document that should have been turned over to the defense. Ah, but the day is young. Back to court for part two...

Read all the coverage from inside the Pellicano courtroom