Juror Testimony Spoiled Hollywood Perjury Trial

     (CN) – Prosecutors should not have let a grand jury foreman testify against a woman who allegedly perjured herself in those proceedings, the 9th Circuit ruled Tuesday.
     The FBI had interviewed Joann Wiggan, a former facilities technician at SBC Communication, in 2004 while investigating the Hollywood private investigator Anthony Pellicano.
     Pellicano traded his celebrity clients for a 15-year stint in federal prison after he was convicted in 2008 for racketeering, wiretapping and other charges.
     Investigators wanted to know why Wiggan had received dozens of voicemail from Ray Turner, a former SBC employee who was known to be Pellicano’s source for “the acquisition and implementation of wiretaps,” according to the court.
     Testifying before a grand jury, Wiggan claimed that she had never used her voicemail account and had never received any messages from Turner. Though she later claimed to have been mistaken and told the grand jury that she might have used the voicemail account, Wiggan still insisted that she never spoke with Turner.
     Wiggan recanted at a subsequent perjury trial, admitting that she had talked to Turner between 2001 to 2003. She maintained, however, that she did not remember receiving any voicemail from him.
     When the first case ended in a mistrial, Wiggan went to trial again on a superseding indictment in 2009. This time the government called the grand jury foreman Thomas Venable to testify against Wiggan.
     During his testimony, Venable said several times that neither he nor the other jurors had found Wiggan credible or believable. Wiggan was convicted and sentenced on all counts.
     A divided panel of the 9th Circuit reversed on Tuesday, finding the admission of Venable’s testimony “redolent of peril to the fairness of the trial itself.”
     The potential pitfalls of having a grand juror testify far outstripped the value of the information, which could have been gleaned elsewhere, according to the ruling.
     “If Venable’s testimony regarding credibility was relevant at all, it was rather weakly so,” Judge Ferdinand Fernandez wrote for the Pasadena panel. “The government suggests that it was relevant to the materiality of Wiggan’s answers to the Grand Jury investigation, but we fail to see how that can be so. Whether she was credible or not (and regardless of her answers), the information sought either was, or was not, material to the Grand Jury. By the same token, while the layout of the Grand Jury room and the way Wiggan objectively behaved, might have relevance to whether she was intimidated or confused, testimony that a grand juror thought that she was, or was not, confused or intimidated, in fact, is less relevant to her state of mind. And, while the statement in the grand juror’s opinion that she was not credible does, undoubtedly, indicate that Venable, and others, thought that Wiggan’s testimony was false, and has some relevance, it is not particularly probative.” (Parentheses in original.)
     “When Wiggan was prosecuted for false statements and perjury, her credibility was crucial because her defense depended largely on her own testimony that she had, at most, made a mistake rather than knowingly lied,” Fernandez added. “On the record before us, the erroneous admission of the testimony of the Grand Jury foreman setting out his opinion about her credibility, which had some probative value but was unduly prejudicial, was both an error and devastating to her defense. We are, therefore, constrained to reverse her convictions and remand.”
     Judge David Ebel, who joined the panel by designation from the 10th Circuit, argued in dissent that the grand juror’s testimony was troubling but not enough to reverse.
     “I am troubled about testimony from Mr. Venable that seemed to speak on behalf of the entire grand jury,” Ebel wrote. “I believe that testimony is improper, but the prejudicial effect of that was blunted when the District Court instructed Mr. Venable, in the presence of the jurors, to only testify on his own behalf and not on behalf of the other jurors.”

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