Conviction Overturned for Smoker on Airline

A federal appeals court Tuesday granted a new trial to a Hollywood mortician who allegedly lit up in a nonsmoking section on a cross-country flight and shoved a flight attendant who tried to stop him. James J. Tabacca, 36, was convicted two years ago of interfering with a flight attendant. He has not yet served his sentence of 15 days in prison, 100 hours of community service and a $500 fine.

A three-judge panel of the U.S. 9th Circuit Court of Appeals threw out Tabacca’s conviction, saying the judge in the case was mistaken when he excused a juror who could not come to court one day during deliberations.

Tabacca’s trial lasted only 2 1/2 days, only three witnesses testified and the absent juror, whose wife had accidentally gone off with his car keys that day, would have been available the next day, the court said. U.S. District Judge A. Wallace Tashima was therefore not justified in excusing the juror, the panel said.