Pellicano Closing Arguments: Final Thoughts

We finished up the day with final closing by Adam Braun, the attorney for computer genius Kevin Kachikian. All of the defense attorneys did a decent job today of discrediting aspects of the government's case, but there were a few things about Mr. Hummel and Mr. Braun's closing that were extraordinarily good. Mr. Hummel did a really smooth job of using Agent Ornellas' testimony to help out former Sgt. Arneson. Along with pointing out that Mr. Ornellas (along with Mr. Pellicano) asked Mr. Arneson to do a run for him, he read back the portion of Agent Ornellas' testimony where he admitted that he hadn't bothered to compare any of the runs done by Mr. Arneson to numerous arrest made by Mr. Arneson.

But frankly, the best part of Mr. Hummel's close came when he finally allowed himself to get emotional about the facts leading up to former Sgt. Arneson's arrest. He talked about his client, who'd admitted to the government that he'd illegally run names for Mr. Pellicano, was unable to tell the government that he also knew about Mr. Pellicano's wiretapping activities. Mr. Hummel's voice rose as he recounted the tale of how his client ended up being charged with RICO in this case--arguing that it happened because he refused, unlike other witnesses, to tell the government what it wanted to hear. Instead of quoting John Adams, Mr. Hummel opted to compare Mr. Arneson to John Proctor, the ultimately persecuted character in Arthur Miller's play The Crucible. Mr. Hummel told the jury about how the character of John Proctor in The Crucible had an adulterous relationship with a servant girl named Abigail Williams who after he ended the relationship, told authorities that Mr. Proctoer was a witch. While Mr. Procter repeatedly admitted to the sin of adultery, he refused to admit to being a witch even though it could save his life. Mr. Hummel argued that similarly, Mr. Arneson has spent the last five years willing to admit to doing runs for Mr. Pellicano, but refusing to admit what he didn't know--that Mr. Pellicano was involved in illegal wiretapping. "The beauty of our constitution," argued Mr. Hummel, "is that we don't convict people for not admitting what they didn't do." And, he added, there has been no evidence that Mr. Arneson knew of Mr. Pellicano's illegal wiretapping. He pointed to testimony by Agent Ornellas' testimony is which he actually said that he'd found no evidence that Mr. Arneson knew about Mr. Pellicano's illegal wiretapping. "What has the government proved besides that the audit?" Mr. Hummel said.

He also took time to talk about police officer Craig Stevens, who plead guilty and cooperated with the government. Referencing Mr. Stevens' phone call to Mr. Saunders' voice mail in which he volunteered to do anything to help the situation, Mr. Hummel suggested that Mr. Arneson could have taken similar action and avoided prosecution if he'd been willing to say that he knew things about Mr. Pellicano which he did not. Mr. Hummel quoted Mr. Stevens as telling Mr. Saunders on the voice mail that he was willing "to testify against someone" and that he was throwing himself at Mr. Saunders' mercy.

Then, Mr. Hummel took a moment to point out all the other witnesses who seemingly had thrown themselves at Mr. Saunders' mercy, testified that they knew about wiretapping and walked away uncharged. He said "Mr. Saunders told you yesterday that there was big money involved, let me put this in perspective for you. My client was not a high priced talent manager or a famous comedian or someone who got rich off of hedge funds," said Mr. Hummel. "He was someone busy protecting our streets. Where are the others who reaped the benefits of Mr. Pellicano's services," he asked with indignation.

He wondered where was Adam Sender, who admitted to listening to wiretaps. Where was Andrew Stevens? Where was Freddie DeMann or Susan Hughes? They were all uncharged despite their admissions of listening to wiretaps. So, Mr. Hummel's point seemed to be that the secret password to getting off in this case was to admit to wiretapping -- or if you didn't want to do that, you could just blame it on your lawyer. "And you didn't hear from Bert Fields?" Mr. Hummel pointed out. "Witnesses testified that he hired Pellicano repeatedly, but the government didn't call him." Mr. Hummel looked over at the jury who suddenly seemed to be listening. "Everyone else who said they used his services but had no knowledge of his wiretapping, none of those folks were prosecuted," Mr. Hummel stated. But when it came to Mark Arneson, the government just wouldn't take no for an answer. And so, according to Mr. Hummel, Mr. Arneson ended up charged with RICO -- despite the fact that Agent Ornellas admitted that he wasn't involved in threats against Pellicano clients, didn't know about the wiretapping and never listened to any transcripts.

Then, Adam Braun closed on behalf of Mr. Kachikian, deftly pointing out that the government had failed to introduce any evidence that showed his client knew that Mr. Pellicano was illegally using his Telesleuth program. Mr. Braun argued that Mr. Saunders wanted the jury to convict Mr. Kachikian on the theory of "how could he not have known." Mr. Braun argued that Mr. Kachikian wasn't as smooth or as sophisticated as the other people in Mr. Pellicano's circles, that he wasn't used to swimming with sharks like agents in the entertainment industry and heads of studios and that it was completely feasible that Mr. Kachikian, who rarely worked in the office, was completely unaware of Mr. Pellicano's illegal wiretapping activities. "Even Tarita Virtue [a former Pellicano employee who testified for the government] said it took her six to seven months to figure out that she was listening to wiretapped phone calls," said Mr. Braun of Mr. Pellicano's ability to hide information from his employees when he chose to do so. He then went after Tarita Virtue, a former employee who spoke with the government at least thirteen times, and testified under a use immunity agreement. Telling the jury that the testimony of government cooperators should be viewed with suspicion, particularly one like Ms. Virtue who'd changed her story a multitude of times, Mr. Braun argued that government witnesses were put under such pressure in this case that they were willing and did say anything the government asked. Mr. Braun also noted that even when the stories of the government witnesses changes--like in Ms. Virtue's case--the government didn't pause to evaluate whether the witness should still take the stand.

Mr. Braun argued that Ms. Virtue had thirteen meetings with the government in which she was asked about wiretapping and Mr. Kachikian and never told a single thing about Mr. Kachikian. But in her fourteenth meeting with the government before trial, she said that Mr. Kachikian had known about Mr. Pellicano's wiretapping. "Anyone every heard of the expression fourteen times a charm?" Mr. Braun asked sarcastically before muttering, "no." Mr. Braun went on to summarize what he believed was the central question the jury should be asking about his client. "The real question is how someone [like Mr. Kachikian] can be a knowing participant in a conspiracy and there not be any evidence " of that conspiracy, said Mr. Braun. He then went on to argue that there wasn't any evidence of a single call in which Mr. Kachikian discussed wiretapping with Mr. Pellicano--despite the hundreds of recordings seized by the government. He noted there wasn't a conversation in any coded language testified to by any witness and there wasn't even an email. Finally, Mr. Braun brought home his argument by noting that "Mr. Pellicano duped Mr. Kachikian. Mr. Pellicano swam in sophisticated waters with Hollywood agents and his clients were enormously wealthy people who cheated on their spouses and then represented themselves to be pillars of the community," noted Mr. Braun. Basically, he was telling us that Mr. Pellicano moved in a real smooth, deceitful world of powerful people and that Mr. Kachikian was no match for this particular private detective who was used to dealing with these sophisticated sharks. "If he had been one of these people," said Mr. Braun, "an agent from CAA or a studio chief, perhaps he would have learned about the illegal wiretapping and if he would have learned, he would have left."

Meanwhile, Mr. Saunders spent the day objecting to some of Mr. Braun's improper questions about who the government should have called to testify in this case and the law governing reasonable doubt. Mr. Saunders seemed on edge today, taking furious notes and showing irritation during Mr. Braun's closing argument. Before Mr. Pellicano got up to testify, there was a strange moment in the trial, where Mr. Saunders walked over to Mr. Pellicano, seemingly to give him some instruction on his closing argument. But as he approached, Mr. Pellicano reached out and shook his hand. Mr. Saunders stood there awkwardly, seemingly unsure of how to disengage his own paw. Fortunately, the judge saved him by indicating that the jury was about to come back. Mr. Pellicano smiled broadly as he watched Mr. Saunders walk back to the government's table.

Tomorrow Mona Soo Hoo will close on behalf of Ray Turner, the former telephone employee and Lawrence Semenza will close on behalf of Abner Nicherie. During the trial, Mr. Semenza declined to present a defense for Mr. Nicherie, noting that the government had failed to meet its burden of proof. Nicherie is accused of paying Mr. Pellicano to wiretap Ami Shafrir and of listening to wiretaps in Mr. Pellicano's office. After the closing arguments, the case will go to the jury.