Judge Rules Out 3rd Trial Over Airplane Smoking Incident

A federal judge rejected a prosecutor’s bid Thursday to put a smoker on trial a third time on charges the Studio City man assaulted an airline stewardess who ordered him to put out his cigarette.

“I think your office has a whole lot more serious cases to spend its time on,” U.S. District Judge David Williams said in turning down the request for a retrial.

Williams granted a defense motion to acquit James Tabacca on charges that he interfered with the duties of a flight attendant, twisting her arm and cursing at her, after smoking was unexpectedly banned aboard a TWA jetliner in 1987.

A federal jury deadlocked last week 7 to 5 in favor of convicting Tabacca on the charges.

Tabacca was convicted on the charge in a first trial in 1988 and sentenced to 15 days injail.

An appellate court overturned the verdict on a legal technicality involving deliberations by the jury.

Williams said the most recent jury deliberations cast doubt on Tabacca’s guilt, adding, “I heard the evidence, and I was unimpressed by it.”

Deputy Federal Public Defender Gerald Salseda, Tabacca’s attorney, argued that the government had not proved its case in the face of witnesses who said they saw Tabacca lose his temper, but didn’t see him assault the stewardess.

But after the ruling, Salseda admitted, “After four years, we had no idea what would happen.”

A subdued Tabacca commented simply, “We are very pleased.”

Assistant U.S. Atty. Mike Davis, defending the prosecution, cited Tabacca’s earlier conviction on the charge.

Davis also cited two witnesses--a passenger and a second stewardess--who testified that they saw Tabacca twist the stewardess’s arm and shove her hard enough that she hit her head on a bulkhead.

“We felt and still feel that the case was worthy,” Davis said.

In 1989, two years after the incident, Congress outlawed smoking on all flights scheduled to last less than six hours.

That action effectively prohibited smoking on all trips within the United States.