Pellicano Trial: My Final Thoughts On The Guilty Verdict

So, the jury found them all guilty--the former private eye, Anthony Pellicano, the former cop, Mark Arneson, the former phone guy, Ray Turner, the former computer consultant, Kevin Kachikian and one former client, Abner Nicherie.

I apologize to everyone for not writing about the guilty verdicts sooner, but I was in New York on other business when the jury came back.

Unfortunately, I missed the final act of the Pellicano courtroom drama. After speaking with some of the defense attorneys and others present in the courtroom when the verdicts came back, I heard that both prosecutors, Daniel Saunders and Kevin Lally were quite pleased with the jury's verdicts. Mr. Saunders and Mr. Lally were confident that justice had been done in this case. But I didn't need to be in the courtroom to know that both prosecutors felt that this was an important case and that Mr. Saunders, in particular, believed that he'd done a great service to the community by convicting Mr. Pellicano and friends. One needed only to listen to his final argument to understand that Mr. Saunders believed that his approach to this problem--his successful prosecution of Mr. Pellicano and several of the conspirators on trial--would finally keep Mr. Pellicano's wealthy and influential clients from using all the detective's very effective illegal tactics to defeat and often destroy their adversaries.

It's clear that many potential plaintiffs and defendants who in the future find themselves involved in litigation will benefit from Mr. Saunders' and Mr. Lally's hard work. The fact that Mr. Pellicano is no longer on the scene, ready and willing to sell his illegal services to the highest and most influential bidder, is definitely a plus for someone who decides to sue a rich and powerful member of our community.

At the very least, one has to admit that the government's conviction of Mr. Pellicano and friends has definitely made wiretapping services less available to the attorneys who handle high end divorces and to all those litigators who tend to service many of Hollywood's most powerful players. And of course, it's going to be harder for all of Mr. Pellicano's well known clients--those who relied on him in case and after case to help them win. Those people will definitely have to re-adjust following these guilty verdicts. Those people are definitely going to have to find a new way of doing business. After all, Mr. Pellicano was around a long time and he had a lot of repeat business.

And worst of all, a lot of the people who used him, now find themselves facing a myriad of civil lawsuits and they're going to have to go it alone--without their favorite private eye on the job. Tough news for many of the town's most rich, famous and powerful citizens.

On the other hand, the clients and the lawyers who used Mr. Pellicano's wiretapping services shouldn't be too depressed about this verdict.

Rather, they might want to consider celebrating this verdict since these rich and powerful members of our community now know for a certainty what many of us already suspected, they are truly above the law. They got away with it--the wiretapping, the harassment, the threats--and the best part is that nobody really seems to care.

These former clients know that if they want to get another private detective to wiretap some annoying reporter's phone and threaten her with a dead fish, nothing will happen to them. They won't go to jail. And the rest of us now know that it's fine for some people--like Susan Maguire or Adam Sender or Andrew Stevens--to pay someone to illegal wiretap, to listen to those wiretaps and to even admit it all as long as those people are wealthy and can afford at least one (or in some cases two or three) great defense lawyers. We've also now understand that it is definitely not fine for other people---poor people like Abner Nicherie--to break the law, pay someone else to wiretap and then listen to those wiretaps. Lesson learned.

But don't think that all these rich and powerful people totally got away with what they did.

Naturally, there was a bit of a downside to breaking the law for some of these rich and famous clients.

They did, after all, have to be interviewed by the F.B.I. And, they did, in some cases, have to pay lawyers to negotiate limited use immunity agreements. And some had to actually endure the indignity of coming downtown and testifying. (It was a special sort of hell for a lot of those Westside clients to have to go east of the 405. Probably worse than going to prison for some.) For some, it was also all terribly embarrassing. There were tapes of them leaked on the Internet and even though they tried to put a stop to that, there wasn't much they could do. And for others, who'd been promised that their ties to Anthony Pellicano would forever remain a secret and that their statements to the F.B.I. would never see the light of day, there was the unbearable indignity of having portions of those interviews either published in the paper or even posted on the internet in a blog---all very low brow and very humiliating. Finally, for a few of Mr. Pellicano's clients, they were forced to endure not only the humiliation of having the public find out they'd hired Mr. Pellicano, but also they had to watch as their private conversations with Mr. Pellicano about their most hated of enemies ended up being posted on the internet. And this time around, there wasn't much they could do besides trying to get the government to make it all stop.

But, the actual bottom line is that even with a few embarrassing and inconvenient moments, the rich and powerful citizens of Los Angeles (and a few other places) didn't have to go to jail. And, now they can stop worrying--if they ever really did-- about what the government is going to do next. From everything that's we've seen in the days following the verdict, the government seems more than satisfied that they got all the bad guys--all those really, really bad people involved who were involved in this conspiracy.

The government is satisfied with convicting Mr. Pellicano and then with dragging a few other names through the mud by producing hundreds of documents that "suggest" that those names hired Mr. Pellicano to engage in illegal wiretapping or at the very least, hired Mr. Pellicano and then turned the other way while he did what he used to do better than anyone else in town.

But there are still some important unanswered questions about this case.

One can't help but wonder about why in a case against just Mr. Pellicano and a former phone guy, computer guy, cop and client, three quarters of the documents turned over to the defense during the discovery process (including lots and lots of audiotapes), related to star attorney Bert Fields, Paramount head Brad Grey and former super agent, Michael Ovitz, despite the fact that none of these men were charged. Mr. Fields repeatedly and publicly denied knowing about Mr. Pellicano's illegal conduct. And, both Mr. Grey and Mr. Ovitz testified under oath that they had no knowledge of any kind about Mr. Pellicano's illegal wiretapping or other illegal activities. So, if everyone denied knowledge of any illegal activity and the government declined to prosecute any of the aforementioned men, why then did the government turn over the documents that it did in this particular case?

Why did the government turn over audio recordings of one of Mr. Fields' young associates telling Mr. Pellicano that he didn't care at all about how Mr. Pellicano got his information as long as the detective was successful? Why did the government turn over to the defense attorneys in this case all of the business records relating to the litigation involving Brad Grey and former client, Garry Shandling? Why did the government turn over to the defense all of Mr. Ovitz's calendar for 2001-2002, which included all of his appointments for the year--except for the ones he made with Mr. Pellicano? And, why, if the government had no intention of ever prosecuting Mr. Fields, did the government force Greenberg Glusker to turn over file after file of cases in which either Mr. Fields or his partners hired Mr. Pellicano? What was the point of all that? Why didn't the F.B.I. care when Mr. Grey made contradictory statements to the F.B.I., but then turned around and prosecuted Mr. Nicherie for doing the same thing? And why, even after Mr. Ovitz admitted that he'd hired Mr. Pellicano to investigate at least four known victims in this case and admitted that he'd paid him at least $75,000 in cash for doing that and was heard on an audiotape setting up a meeting with the investigator, that Mr. Ovitz was required to merely testify briefly in court?

The fact that three quarters of the documents turned over by the government related to Mr. Fields, his client Brad Grey and matters involving Mr. Pellicano can be interpreted in two ways: a.) the government collected all these documents and then decided that there wasn't enough evidence to indict Mr. Fields , or b.) the government preferred to merely suggest that Mr. Fields and Mr. Grey were guilty through hundreds of documents without having to endure the messy and often difficult process of having to prove that guilt beyond a reasonable doubt. (The government would argue, of course, that the public was never supposed to see the bulk of these documents. But when documents are produced during a legal proceeding--including F.B.I. interviews with some of the most famous and wealthy people in the country--it's a pretty safe assumption that at least a few of those documents will become public.)

But whatever the reason for producing these documents, the fact remains that there are hundreds of documents--including audio tapes--that show that members of the law firm of Greenberg Glusker worked closely with Mr. Pellicano for years--particularly on behalf of client and Paramount studio chief, Brad Grey--and these documents show that at least some of the lawyers at Greenberg Glusker knew that Mr. Pellicano was wiretapping. There are also documented F.B.I. interviews with more than one of Mr. Fields' clients that suggest that Mr. Fields, as well as other Greenberg attorneys, knew that Mr. Pellicano was obtaining some of his information through illegal means. (There are also documents that weren't turned over to the defense that also suggest that Mr. Fields knew about Mr. Pellicano's illegal wiretapping activities.) There was even testimony at the trial by one of Mr. Fields' clients that Mr. Fields told him through careful language that Mr. Pellicano used suspect investigative methods, but that those methods were effective. And, another one of Greenberg Glusker's clients testified at trial that when she found out that Mr. Pellicano was illegally recording her soon-to-be ex-husband, she tried to tell her lawyers at Greenberg, but they refused to listen. Naturally, the prosecutors didn't ask her why her lawyers refused to listen when she tried to tell them about the illegal recordings or what exactly they thought she was going to say. Did the lawyers put their fingers in their ears and sing when she started to talk about what Mr. Pellicano was up to in his office on Sunset or did they just push her out the door and pretend that she was never there? No one asked. The prosecution didn't need or want a witness on the stand talking about how her Greenberg Glusker lawyers either knew what she was about to say or that they went to great lengths to not listen to what she was about to say. They weren't interested in prosecuting Greenberg least not by the time the trial started.

I suppose, like any prosecutor with any political savvy at all, neither Mr. Saunders nor Mr. Lally relished the idea of going up against any of L.A.'s rich and powerful citizens who likely would have hired an army of incredible attorneys to defend them. The one thing that the prosecution would have known for sure is that none of these guys would have pulled a Pellicano and ended up defending themselves. The prosecution of a former cop, a former phone guy and a computer geek is one thing, but going after L.A.'s rich and powerful is quite another. It was probably the better decision to stick with a poor former client like Mr. Nicherie than to try and convict someone with the funds of an Adam Sender or even an Andrew Stevens, let alone a Michael Ovitz. And besides, Mr. Ovitz denied knowing about any of Mr. Pellicano's illegal activity. So, that always make it harder when someone won't just roll over and admit they did something illegal or when you don't have more than thirty audio recordings of them chatting about wiretapping like they do in the Terry Christensen case. So, absent at least thirty audio recordings of a client chatting about wiretapping, better to go after the little guys and get a big victory then actually have to prosecute someone who could make their lives a real living hell. If the government is expecting Mr. Christensen's trial to bear any resemblance to the one they just completed, they're in for a rude awakening. When Mr. Christensen allegedly agreed to wiretap Ms. Kerkorian and make her life a living hell, he was working for a client. So, if he'd go to that much trouble for Mr. Kerkorian, imagine how hard he'll be willing to fight in order to save his own career and to keep himself out of prison?

And so, as Mr. Saunders said in his closing arguments, prosecutors have effectively cut off Mr. Pellicano's supply of illegal services to many of his wealthy and powerful clients. But, although Mr. Pellicano is heading off to jail, no one should forget that his clients--all of those people who had no trouble paying big money for his services--are still around and more likely than ever to employ a strategy of total destruction against their adversaries. Even as the former victims emboldened by the verdict promise to bring these former clients to justice in civil court, they should proceed with extreme caution. Just in case these plaintiffs forgot, these former clients of Mr. Pellicano who they're preparing to take to court--these are the folks that now know for certain that they're above the law.