Ex-Cop's Move For Mistrial Fizzles

Anyone who visits the Roybal Federal Building in downtown Los Angeles—say, as a defendant in a racketeering case like the current one starring Anthony Pellicano—would pass by some massive sculptures by Jonathan Borofsky. One, called Molecule Men, is of perforated metal figures either dancing or locked in struggle.

If the Pellicano trial has been marked mostly by a good degree of civility since it began in early March, in recent days the mood and tone has changed, and it has started to resemble that dancing sculpture.

The scrap that began early Tuesday morning following ex-cop and Pellicano crony Mark Arneson's testimony the previous Friday was different in kind and degree from all that came earlier.

Arneson is a hulking, sun-reddened figure, generally bearing the sullen air of a man who's facing a considerable stretch in a place where cops aren't always popular. During his testimony Friday (more on that in a moment), he showed the articulate, even convincing streak that almost turned him into a writer before his older brother enlisted him in the police force.

And then Assistant U.S. Attorney Daniel Saunders took on the attributes of another Borofsky work, Hammering Man, and left Arneson's "just doing my job" defense in broken shards.

Arneson's attorney Chad Hummel looks a bit sunburnt as well lately, or perhaps it was the choleric mood he's been in since that pounding cross-examination. He filed a motion Monday—identified in boldface capitals as an EMERGENCY motion—for a mistrial.

U.S. District Judge Dale Fischer had barely greeted the competing parties when Hummel, citing improper introduction of prejudicial testimony on Friday, warned the judge that "our intention is to file a writ in the 9th Circuit today."

Hummel's beef was that the government had violated an evidence tenet called Rule 16 by momentarily handling a tape of Arneson being questioned by the L.A.P.D.'s internal affairs division.

Such sessions are considered "compelled testimony" and so "immunized,"—off limits to prosecutors. Someone in the City Attorney's office had mistakenly included the forbidden tape in a box of otherwise acceptable evidence.

Federal prosecutor Kevin Lally would say that he'd heard just five seconds or so of the tape on March 11, realized it was protected, and immediately handed it over to the government's "taint team" to keep he and Saunders in the dark as to what it contained.

Such maintenance of separate "clean" and "dirty" teams of G-men is an accepted practice, but Hummel argued that the mere fact the government had such a tape in its possession should have been communicated to Arneson. That fact, Hummel said, citing case law, would have affected Arneson's decision to take the stand to "rehabilitate himself" in the eyes of the jury.

Judge Fischer, realizing Hummel was at minimum going to slow her trial down and might possibly sink it, gave him a look that was pretty much the polar opposite of the rather sweet smile she wears when saying to the jurors, "I order you to have a nice weekend."

On Tuesday, following a robust debate between Hummel, the defense lawyer, and Saunders, the prosecutor, she called the jury in, said little more than something had come up, and dismissed them for the day. That opened time for the opposing sides in the case to take it all down to jurisprudential molecules.

Fischer is an impressive jurist. After spending 16 years as a civil litigator in private practice and six more as a judge in Los Angeles Superior Court, President Bush nominated her for the federal bench in 2003; the Senate confirmed her 86 to 0.

Known as strict but also fair and reasonable, she took on the current trial based on her early entry into the Pellicano brouhaha via a separate fraud case against Daniel Nicherie, who's now jailed while his brother Abner is a Pellicano co-defendant.

(Abner's tale is so complicatedly scammy—he seduced, then traduced his fraud victim's wife, for starters—that he can't muster enough interest in most of the trial proceedings to stay awake for all of them. For reporters already envious of the trial participants' right to have large bottles of water and access to their laptops, this freedom to nap during laborious cross-examinations is perhaps the most envied perk.)

Fischer, who as a Municipal Court judge fought off an effort by ex-N.F.L. star Jim Brown to brand her as a member of "a radical extremist group" (the Inns of the Court, founded in 1980 by former Chief Supreme Court Justice Warren Burger) and presided over a guilty verdict for Brown for smashing his wife's car with a shovel, actually looked forlorn.

"Everyone seems to have joined in the writ in case there's a spillover," she said after the co-defendant's attorneys said they too felt the prejudicial damage might affect their cases.

The issue centered on a section of Saunders' slamming cross-examinations that Hummel read back. Referring to a 1999 investigation of Arneson by the L.A.P.D.'s internal affairs division, the prosecutor all but spat, "And you beat that internal investigation because you lied to them, didn't you, sir?"

Arneson, who had been accused by fellow officers of spending his time searching police records (for Pellicano's nefarious activities, if you ask the prosecutors), replied, "That is incorrect."

On paper, Arneson mostly sticks to his guns (though he was harried enough to say he couldn't remember things he had admitted to earlier in his testimony). But an elaborate portrait of himself as a dedicated cop that Hummel had painted him as was largely destroyed by Saunders' detailed, angry cross-examination.

Perhaps he had no lower moment than when Saunders, the prosecutor, was showing a greatly magnified list of database searches, illuminated on one wall, and the former vice cop spotted one miscreant's name hidden in a row of unsuspecting citizens who were Pellicano targets. "That's [name redacted for this posting]...a local Venice prostitute," Arneson said.

"Are you saying," Saunders slowed down to inquire with rich sarcasm, "that on that day you ran something legitimate?"

Arneson sketched out a career of chasing down pimps and other threats to the public safety, using Pellicano's tips, as he advanced in rank and responsibility.

He said Pellicano paid him $2,500 a month for a variety of security and bodyguard services (clients included Farrah Fawcett, Goldie Hawn, Whoopi Goldberg, and Nicolas Cage). Arneson added that a number of the searches recounted in court must have been done by someone who jumped on his computer using his password.

And yet Arneson falsely told a department commander that Pellicano never took part in his investigations. Arneson said he'd lied to his commander to avoid tainting a particularly long-running investigation.

Ultimately, Arneson said, "I take responsibility today as I did five years ago [in interrogations by authorities]...I thought it was for the good of a greater cause. I crossed over that line, and I shouldn't have."

Arneson criticized government investigators for trying to turn him against Pellicano: "They read me my rights an threatened to charge me with RICO (racketeering, which he is indeed now faced with) if I didn't roll over."

He also said that F.B.I. agent Sam Ornellas, the case's pivotal investigator, asked him to run a pair of database searches: "He said that his neighbor was an asshole."

By the time Saunders had finished working on Arneson—amending the ex-sergeant's initial confession of 50 to 100 searches for Pellicano to the likelier figure of "thousands"; showing the stack of search printouts before Pellicano was arrested (thick) and after (thin); and using an audiotape to undercut his contention that he knew nothing about the search names—all of his defense lawyer's assiduous character rehab was a fading memory.

From the expressions on jurors' faces, they didn't much enjoy having it made clear that the defense was just maybe trying to sucker them.

Perhaps Hummel, who graduated from the University of Chicago Law School in 1988 and has been generally impressive, was simply taking his best shot at a dwindling cause when he brought up the mistrial motion.

And yet his heat and investment seemed real enough, as his face grew more florid and his expression grimmer as the judge pushed back against his contentions. He scored a minor victory in getting prosecutors Saunders and Lally on the stand to defend their handing of the tape.

Saunders, though adamant that the tape was not an issue, was clearly repentant for having made an issue of the internal affairs investigation, and sometime during the rare lunch break the judge granted (the trial sessions typically run from 7:45 a.m. to 2 p.m.), he and Hummel achieved detente.

The moments right after lunch yielded an odd tableau, with Arneson's wife idly thumbing paperwork on the government's table and Hummel chatting away with prosecutors—even Pellicano laughingly joined in.

Judge Fischer's summary of her thinking in denying a mistrial was so detailed and lucid that everyone seemed to collectively realize hers was the biggest brain in the courtroom. "I know you didn't want to have a hearing like this," she told Saunders, and congratulated both sides on their professionalism amidst "vigorous advocacy."

Fans of vigorous advocacy will want to pay heed to Wednesday's proceedings, as attorney Bert Fields, who had the Pellicano investigation breathing down his neck for years but was never charged, was scheduled to be called by the defense.

Scheduled to be on the stand on Tuesday, Fields had turned up early only to be left to haunt the witness room and cafeteria of the 22-story building with his Greenberg Glusker colleagues (notably his chief advocate, Brian Sun.)

The information that Arneson had earned part of his $2,500 stipend one month by supervising a 24-hour surveillance of Fields' home while it was tented and fumigated for termites had provided some comic relief on Friday; if the government team finishes its cross-examination of Arneson as avidly as they started it, then seeks to buttress their case against the defendants via an extended grilling of Fields, the humor and goodwill that closed Tuesday may evaporate very quickly.