Attorney Terry Christensen and five co-defendants caught up in the scandal surrounding Hollywood celebrity sleuth Anthony Pellicano argue on appeal that their wiretapping convictions were tainted by prosecutorial and juror misconduct.
Christensen, former managing partner of what is now Glaser, Weil, Fink, Jacobs, Howard & Shapiro in Los Angeles, was sentenced in 2008 to three years in federal prison after a jury found that he paid Pellicano more than $100,000 to wiretap the ex-wife of his client, billionaire Kirk Kerkorian.
In a joint brief that he and his co-defendants filed with the U.S. Circuit Court of Appeals for the 9th Circuit, Christensen argued that one of the jurors was improperly dismissed during deliberations after he raised doubts about the merits of the government’s case against Christensen.
At that time, U.S. District Judge Dale Fischer said that she removed the juror, referred to in court papers as Juror No. 7, because he had refused to deliberate and had questioned the validity of the government’s case.
“The record does not show that Juror No. 7 was unwilling or unable to deliberate or follow the law — because the court never asked that question,” wrote Christensen’s lawyers, Dan Marmalefsky and Seth M. Hufstedler, both Los Angeles partners with Morrison & Foerster.
They wrote that the rest of the jurors, particularly the foreman, were biased against Juror No. 7, a native Russian. Confusion about Juror No. 7′s statements boils down to simple misunderstanding, they said. “The court’s failure to inquire deeper as to the juror’s understanding — particularly for a juror who speaks English as a second language — does not provide sufficient grounds for dismissing him during deliberations.”
Pellicano was convicted in two separate trials on 78 counts relating to wiretapping. During the second trial, involving Christensen, the jury heard 34 recorded conversations. In that trial, prosecutors charged Christensen and Pellicano with conspiracy and with intercepting wire communications.
During Christensen’s sentencing hearing, Fischer said the lawyer’s “shocking and outrageous” conduct “marred the legal profession” and “showed disrespect for the system of the law on a grand scale.”
According to court records, Kerkorian — at the request of his family law attorney, Dennis Wasser of Los Angeles-based Wasser, Cooperman & Carter — hired Christensen in 2002 to represent him in his child support case against his ex-wife, Lisa Bonder Kerkorian. Kerkorian had been paying his ex-wife child support payments of $50,000 per month. Two years later, she was asking for $320,000 per month.
Christensen retained Pellicano to investigate the paternity of the child. The real father turned out to be Steve Bing, the real estate developer and movie producer.
On appeal, Christensen’s lawyers also raised a discovery violation involving a witness’s statement in a presentencing report that the government didn’t disclose to defense attorneys until years following the trial.
“The presentence report, if it had been disclosed by the government, would have provided powerful impeachment evidence,” the lawyers argued, because the witness’s statement would have supported Christensen’s claim that Pellicano lacked the ability to wiretap Bonder Kerkorian in 2002.
That same alleged discovery violation was raised by four other defendants in the case: Mark Arneson, a former Los Angeles Police Department sergeant; Rayford Turner, a former field technician for SBC Inc., now AT&T Inc.; Kevin Kachikian, a computer programmer whose software is alleged to have helped Pellicano tap wires; and Abner Nicherie, a client of Pellicano’s. All four were convicted during the first trial.
Lawyers for those defendants argued in Thursday’s brief that their clients had been prejudiced because one of the prosecutors made an off-hand remark about his personal opinion of Arneson’s guilt that was overheard by jurors. Later, one of the jurors lied to the court about overhearing the comment and slept during portions of the trial.
Additionally, prosecutors wrongfully introduced evidence that Pellicano’s wiretapping led to the acquittal of defendants accused of serious crimes like rape and murder, according to the brief.
Each defendant intends to file an individual opening brief on Oct. 6.
Amanda Bronstad can be contacted at email@example.com.