Can we get a witness?
Editor’s note: Rachel Abramowitz will be periodically checking in on the trial of Anthony Pellicano -- former private eye to the stars, who faces 79 counts of racketeering, wiretapping, conspiracy and other federal charges -- and writing about what the case means to Hollywood.
It was “Waiting for Godot” week at the Pellicano trial, though for those who follow the shenanigans of the Machiavellian private eye, Godot wasn’t a Brechtian invocation of God but of esquire Bertram Fields, famed Hollywood mega-lawyer, and Pellicano’s benefactor.
For two days last week, Fields lingered at the Roybal Federal Building as he waited for his turn on the witness stand. The government investigated Fields but never charged him with anything, and the litigator has always maintained he knew nothing about his gumshoe’s alleged illegal activities. Here, it seemed as if the court was finally going to get to hear from Fields’ mouth his professions of innocence.
But ultimately, Fields was never called to testify, leaving some court watchers with an overwhelming sense of frustration and a lack of closure.
Fields’ nonappearance capped weeks of backstage drama. First, prosecutor Daniel Saunders announced to the court that he’d been notified by Fields’ then attorney, famed trial maven John Keker, that Fields planned to plead the Fifth if called as a witness. Fields would invoke his right not to incriminate himself. Within hours, Fields had contacted the media to say he wasn’t planning to take the Fifth, that he had nothing to hide. By the next morning, Keker had been replaced as his lawyer. Then the government decided not to call Fields at all. Then defense lawyer Chad Hummel, who represents Pellicano’s LAPD crony Mark Arneson, announced that he intended to question the legal liege, a pronouncement that left Saunders swearing that he’d cross Fields for four hours. Hummel dropped that plan Thursday after Saunders eviscerated his client, Arneson, on cross-examination.
So the public is left to imagine what the 79-year-old lawyer might have said under oath. Would the Harvard-trained Fields, who once wrote a nonfiction book examining Richard III’s guilt or innocence, insist that he was naive to Pellicano’s alleged repeated forays outside the realms of the law?
Mum’s the word
Sure, various clients from Fields’ firm Greenberg Glusker such as the ex-wife of Los Angeles developer Robert Maguire, Susan Maguire, hedge fund manager Adam Sender and movie producer Andrew Stevens testified -- albeit with the cover of immunity agreements -- to having repeatedly listened to Pellicano’s illegal wiretaps. Sender even testified that he believed Fields’ underling David Moriarty knew all about Pellicano’s surreptitious listening (an assertion that Moriarty denied via his lawyer).
Then there are the comically blustery musings of Pellicano himself, who on the government’s tapes is heard brandishing his friendship with Fields like the gold seal of approval. When Mike Ovitz worries that Pellicano might not take his call, the private eye assures the despairing mogul, “Bert Fields loves you -- I love you.” He tells another client, business manager Kenneth Starr, that “Bert is like my blood.” According to testimony, Fields suggested Starr hire Pellicano to help fight off a lawsuit from Sylvester Stallone. The government contends that Pellicano, in turn, wiretapped Stallone and proceeded to tell Starr all the specific details of Stallone’s legal strategy. On tape, Pellicano intones, “You cannot say a word to anybody in the world about what I just told you. . . . Now, you are not going to tell Bert this. I am.”
Of course, it’s possible that Pellicano parsed his information delivery to Fields in such a way as to hide his illegal methods. That’s what Fields’ lawyer Brian Sun contends, noting “there was evidence at trial suggesting that Pellicano was directing his clients not to tell their lawyers what the source of the information was.” Indeed, Pellicano repeatedly tells one person after another to keep the secret between them -- which, as the government case suggests, wasn’t actually the best way to keep a secret.
Or maybe Fields never plumbed too deep into the murky Pellicano muck, much like his close friend and Greenberg Glusker client, Taylor Thomson, daughter of the late media billionaire Ken Thomson, who hired Pellicano to investigate her former nanny. “I want you to do whatever you can to get whatever information you need to on” her, Taylor tells Pellicano on tape played in court. “I’m not gonna ask any questions.”
To many, the mere appearance of so many Greenberg Glusker clients working with the likes of the thuggish Pellicano raises eyebrows.
“It just doesn’t seem very logical or believable the lawyers would be totally clueless this was happening,” said Robert Schwartz, a partner at O’Melveny & Myers, who’s faced Fields in court as a foe as well as been his co-counsel. “Maybe if it was just one client who’s off on his own with Pellicano listening to wiretaps, but if you have several, it’s hard to understand how the lawyers wouldn’t know about it.”
Still, apparently “don’t ask, don’t tell” works as a legal strategy. Call it the plausible deniability defense.
Lawyer customers
“The standard is proof beyond a reasonable doubt,” said Loyola Law School professor Laurie Levenson. “What you need is to get out of the lawyers’ mouths that they were aware of Pellicano’s methods. The problem is we think that the lawyers should have known. In the back of our minds, we think that they did know, but high suspicion doesn’t meet the legal standard. It’s hard to believe Anthony Pellicano was duping successful lawyers -- it’s more likely they just didn’t care.”
Perhaps what’s most surprising about the Pellicano case is that Fields was hardly Pellicano’s only white-shoe employer. This wasn’t an isolated case but practically a Pellicano pandemic running through L.A.’s toniest legal circles.
Pellicano apparently had lawyers he trusted and those he didn’t.
On one tape played by the government, Pellicano vitriolically berates his client George Kalta, who had the temerity to replace Danny Davis -- the attorney Pellicano had chosen for him -- with Leslie Abramson. “This is not a lawyer I can trust,” Pellicano ranted about Abramson; he complained that Kalta almost got him arrested. (Kalta later pleaded guilty to conspiring to wiretap with Pellicano, and Davis’ attorney Harlan Braun said his client knew nothing about any illegalities performed by Pellicano on Kalta’s behalf.)
Former record executive Robert Pfeifer also pleaded guilty to paying Pellicano to wiretap his ex-girlfriend Erin Finn. On the stand, Pfeifer testified that the gumshoe had arranged for his legal representation with attorney Alan Weil. Pfeifer recounted an incident when Pellicano suggested sending Finn a wreath of black roses while she vacationed at a Ventana resort, but the idea was allegedly vetoed by Weil, who said (according to Pfeifer’s testimony), “How would his client, you, have known she was there? You can’t expose that.”
Weil denies he knew about any wiretaps or illegal activity. “It’s untrue. It’s a fabrication,” he says. “The problem is I’m ethically bound not to say anything about Mr. Pfeifer because of attorney-client privilege.”
The only lawyer indicted on a Pellicano-related charge is Kerk Kerkorian’s other lawyer, Terry Christensen.
Christensen doesn’t have “plausible deniability” because the federal government has him on tape allegedly discussing wiretapping Kerkorian’s ex-wife during the pair’s acrimonious child support proceedings. Christensen has pleaded not guilty and will be tried in a separate case.
Who knows? Maybe these lawyers really didn’t know what Pellicano was up to.
Maybe they’re sitting back in their lush Malibu enclaves, drinking martinis and watching the Pellicano trial from afar. They’re shocked, shocked, about what their good pal Anthony Pellicano was allegedly doing behind their backs.
They’re as shocked as the rest of us.
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