Regarding what one judge referred to as a “bizarre situation,” lawyers for disgraced attorney-to-the-stars Terry Christensen argued on Monday that a juror who’d been leaning against convicting him of federal wiretapping charges was wrongfully dismissed during deliberations.
Christensen, once managing partner of what is now Glaser Weil Fink Jacobs Howard Avchen & Shapiro in Los Angeles, was convicted in 2008 in the federal government’s massive wiretapping prosecution involving private investigator Anthony Pellicano. Christensen, who was tried alongside Pellicano but separately from the other defendants, was accused of paying the celebrity sleuth $100,000 to wiretap the ex-wife of billionaire Kirk Kerkorian in a child-custody dispute.
On Monday, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, hearing oral arguments involving all the defendants, seemed particularly concerned about U.S. District Judge Dale Fischer’s dismissal of a juror in Christensen’s case, ostensibly because he questioned the wiretapping law on which the case was based.
“This is really a bizarre situation,” said U.S. District Judge Dana Christensen, chief judge of Montana, sitting by designation. He asked whether Fischer had asked the juror specifically whether he would follow the law, to which Terry Christensen’s lawyer, Dan Marmalefsky, replied, “No.”
“There’s no question here that there was reasonable possibility that discharge of a juror stemmed from a disagreement,” said Marmalefsky, a partner at Morrison & Foerster. He argued that the judge should not have dismissed the juror, who likely was discussing the merits of the case. Rather, he said, Fischer should have sent the jury back for more deliberation or declared a mistrial.
Assistant U.S. Attorney Joshua Klein, however, insisted Fischer didn’t need to ask whether the juror would follow the law after he lied in open court three times. “Why should she ask further questions?” he said.
Senior Circuit Judge Raymond Fisher agreed, but said the facts created a “troublesome issue.” And Circuit Judge Richard Clifton seemed to doubt that jurors, who were 1 1/2 hours into deliberations, had addressed the merits of the case.
Pellicano, who has been imprisoned for a decade, was convicted on 78 counts related to the wiretapping. Christensen, who was sentenced to three years, has remained free on bond pending his appeal.
Lawyers for the additional defendants raised other issues, including prosecutorial misconduct claims.
Amanda Bronstad is a reporter with The National Law Journal, a Recorder affiliate.