In Pellicano Case, It’s a Dance Over Indictment

Several weeks ago, after federal agents had been investigating prominent entertainment attorney Bert Fields for more than two years, his attorneys and federal prosecutors found some common ground: It did not make sense for the two sides to immediately go to war in court.

So, they agreed to extend the deadline for prosecutors to decide whether to file charges against the 76-year-old Fields, one of the most successful lawyers in Hollywood.

Why would Fields agree to waive the statute of limitations and give prosecutors more time to investigate him in their massive probe of illegal wiretapping by Anthony Pellicano? Many Hollywood figures and their lawyers have used the private eye to allegedly gain advantage in divorce cases and other thorny litigation.

Playing what one legal analyst called “a difficult game of chicken,” Fields and his attorneys apparently did not feel comfortable calling the government’s bluff and risking an indictment, and prosecutors apparently felt they needed to do more work on the case before deciding whether Fields had broken the law and that they could prove it to a jury.

Fields had employed Pellicano on several occasions. And Pellicano not only taped the adversaries of his clients, he taped his clients as well.

With prosecutors still combing through hundreds of hours of tape recordings and encrypted computer files seized in a raid of Pellicano’s office, Fields’ defense team simply does not know what the prosecutors have.

Sources close to the case say that at this point, neither side is aware of the totality of potential evidence, a complicating factor in assessing their strengths and weaknesses -- and a factor militating toward caution not only for Fields but for Assistant U.S. Atty. Daniel A. Saunders as well.

What is clear now to Fields’ attorneys is that Saunders is willing to go after Hollywood’s big-time attorneys, having recently indicted Terry N. Christensen for allegedly paying Pellicano to illegally wiretap billionaire Kirk Kerkorian’s ex-wife in a heated divorce case.

Christensen is the most prominent lawyer charged with crimes in Los Angeles in many years. Fields would be even bigger game, given a client list that has included Warren Beatty, Tom Cruise, Dustin Hoffman, Jeffrey Katzenberg, Steven Spielberg and several movie studios, as well as authors Mario Puzo and James Clavell.

In indicting Christensen, Saunders made extensive use of tape recordings that Pellicano made of his conversations with the attorney.

Christensen and Pellicano discussed “how long the illegal wiretap” on Kerkorian’s ex-wife “should remain in place,” the indictment states.

In one conversation, Pellicano told Christensen to “be very careful” about how he used information from the illegal wiretap “because there is only one way for me to know this.”

Whether Pellicano tape-recorded conversations he had with Fields is not publicly known.

Fields and his defense team -- led by highly regarded attorney John W. Keker of San Francisco -- say he has broken no laws and that if Pellicano engaged in any illegal wiretapping, it was done without Fields’ knowledge or authorization.

So far, a federal grand jury in Los Angeles has indicted 13 people, including Pellicano, Christensen, two former police officers who allegedly accessed confidential databases for Pellicano and two former phone company employees.

Saunders, a 43-year-old graduate of UC Berkeley’s Boalt Hall School of Law who has specialized in organized crime cases, said in court earlier this month that there would be at least one more set of indictments in the burgeoning case, which has sent shock waves through the entertainment and legal communities.

The indictment alleges that Pellicano’s investigations agency was run as a racketeering enterprise that wiretapped, blackmailed and intimidated dozens of celebrities, business executives and other individuals -- including comedian Garry Shandling, real estate developer Robert Maguire and Lisa Bonder Kerkorian, the billionaire’s ex-wife -- who found themselves at odds with powerful adversaries.

The illegal wiretaps, according to the indictment, gave Pellicano and his clients “a tactical advantage in litigation by learning their opponents’ plans, strategies, perceived strengths and weaknesses, settlement positions and other confidential information.”

In agreeing to an extension, Fields’ attorneys have, for now, achieved a prime objective of a defense lawyer in any criminal case: forestalling indictment.

“It is better not to be indicted than to be indicted,” said Columbia University law professor John C. Coffee. “Delay is on your side if you are the defense lawyer. Witnesses die, witnesses move away, evidence disappears.”

Los Angeles defense lawyer Gordon A. Greenberg, a former federal prosecutor, said defense attorneys must make a “judgment call” when they are asked to waive the statute of limitations about whether the government “will really pull the trigger” and indict if they don’t agree.

“The bottom line often is that the mere fact of an indictment can be so devastating that vindication at the end may well be forgotten,” and that is a clear reason to be cautious and agree to the waiver, Greenberg said.

The waiver can be as short as 30 days, noted Greenberg, who said he had utilized the tactic both as a prosecutor and as a defense lawyer. He said they are frequently extended, in some cases for several years during highly complex cases. Neither prosecutor Saunders nor Fields’ attorneys would comment on any aspect of the waiver agreement.

San Diego attorney Charles LaBella, the former chief of the public corruption unit of the U.S. attorney’s office in Manhattan, said defense attorneys who call the government’s bluff and refuse to waive the deadline must be very confident that prosecutors have a weak case.

“This is a very bold position,” he said. “You have to have the backing of your client. It is rare that someone tells a prosecutor to pound sand.”

In part, that is because it is easy for a prosecutor to obtain an indictment, requiring the votes of just 12 members of a 23-person grand jury -- so easy that former New York Judge Sol Wachtler once said, “A grand jury will indict a ham sandwich.”

Another former federal prosecutor, Loyola law professor Laurie Levenson, said she could not recall an instance in her years in the Los Angeles U.S. attorney’s office in which a defense lawyer declined the opportunity to extend the statute of limitations so he could continue to attempt to persuade her against seeking an indictment.

“This is where the good defense lawyers earn their bucks,” she said, noting that the work they do outside the courtroom is often more important than what they do in the courtroom.

Sometimes it worked, she said; sometimes not. The prosecutor, she added, gives up nothing by agreeing to the delay.

“Both sides are getting information and trying to make sure the other side gives them more. That is the dance -- how much can I get you to show about your case, and how much do I have to give in return,” Levenson said.

In Fields’ case, she said, the goal for his attorneys is to create as much of a buffer as possible between their client and Pellicano.

One tactic they may choose in the coming weeks would be to make Fields available for a “queen for a day” interview with Saunders.

This would give the prosecutor an opportunity to question Fields directly to size up his credibility, she said. Fields would have immunity for anything he said -- thus “queen for a day.” But if Saunders doesn’t believe Fields, Levenson said, “it wouldn’t stop him from bringing charges.”

Whether or not such a meeting is held, Levenson said, the prosecution’s goal in the weeks ahead is to try to link Fields and Pellicano as directly as possible.

With the defense claiming that Fields didn’t have direct contact with Pellicano or that Pellicano lied to him, the prosecution would most likely want to talk to everyone possible at Fields’ firm -- assuming the 5th Amendment isn’t invoked by anyone -- to see who the contacts were and what was being said.

In a federal investigation, with the ability to compel witnesses to go before a grand jury, a prosecutor has a lot of power. But Saunders also knows that if he indicts Fields, he will be facing very formidable adversaries in court -- not just Fields’ attorneys but also the defendant himself.

And Saunders also realizes that a prosecutor can never have too strong a case. Twenty-two years ago, it appeared that this U.S. attorney’s office had a rock-solid case against auto mogul John DeLorean -- videotapes made during a sting operation that appeared to show DeLorean consummating a major drug deal. But strong defense work casting doubt on the credibility of the prosecution witnesses overcame the power of the tape, and DeLorean walked out of court a free man.

Until Christensen’s indictment a little more than a month ago, said Marvin Rudnick, a former federal prosecutor, it wasn’t clear whether Saunders and the prosecution would “go beyond the Howard Hunt types,” a reference to one of the organizers of the Watergate burglary in a case that eventually toppled President Nixon.

Rudnick is now advising former Times reporter Anita Busch. Threats against her in 2002 precipitated an investigation of Pellicano that mushroomed into a larger probe of Hollywood entertainment and legal figures. Although not predicting that Fields would be charged, Rudnick said Christensen’s indictment showed “there’s no telling how far this will go.”