Much of 'Sahara' trial held behind closed doors

As closing arguments continue, legal experts question secrecy.

By Glenn F. Bunting
Times Staff Writer

May 1, 2007

As Clive Cussler stumbled through seven days of trial testimony during his legal showdown with billionaire Philip Anschutz, Judge John P. Shook expressed skepticism about the 75-year-old novelist's performance on the witness stand.

"Mr. Cussler is smart like a fox," Shook said. "He has got an iron-trap mind. He knows what is going on here."

The judge made the statement April 20 when he huddled with lawyers to discuss Cussler's responses before the jury. Like nearly all of the sidebar conferences held in the high-stakes Hollywood trial, the meeting took place behind closed doors.

Transcripts of the sessions obtained by The Times provide rare insights into legal maneuvering, finger-pointing and posturing in the breach-of-contract case. They reveal how entertainment lawyer Bertram Fields prevailed in persuading Shook to ban explosive testimony about Cussler's alleged use of racial and anti-Semitic epithets. And they show Anschutz's attorneys repeatedly challenging the way Fields sought to try the case.

The documents also raise questions about the court rulings and oral arguments that took place inside Shook's private chambers. Legal experts say that routinely closing parts of a civil trial to the public and the press violates the U.S. Constitution and California's long-standing "open court" statute.

"This judge needs a little reminder of the 1st Amendment," said Laurie Levenson, a professor at Loyola Law School. "In no circumstances should every hearing be held in secret."

Cussler is seeking $40 million in damages based on claims that Anschutz and his movie production company reneged on contractual rights that gave the author "sole and absolute" approval over the adaptation of the novel "Sahara."

Anschutz alleges that Cussler acted unreasonably in exercising those approvals and committed fraud by flagrantly inflating sales of his Dirk Pitt novels to extract an unprecedented $20-million fee for rights to "Sahara" and one other book. Anschutz has lost about $105 million on the adventure film, which starred Matthew McConaughey and Penelope Cruz.

Closing arguments continue today and the case is expected to go to the jury Wednesday.

Lawyers who practice in Los Angeles County Superior Court said it was highly unusual for judges to close trial proceedings unless there were compelling reasons such as the need to protect national security interests or trade secrets.

Yet one morning last week, Shook, a court reporter and several lawyers shuffled in and out of the judge's chambers five times in the span of an hour to discuss rebuttal testimony. The participants offered conflicting explanations for convening in private at least 59 times during the 58-day trial.

Marvin Putnam, Anschutz's lead counsel, said the hearings were closed at the request of Fields. "I didn't want this," Putnam said. "It is beyond extraordinary. I've never seen it."

According to the transcripts, however, Putnam's associates from the O'Melveny & Myers law firm argued at least twice against holding hearings in open court. In one instance, an Anschutz lawyer specifically cited "the problem" of trying the case "in the press."

Fields said it was Shook who wanted to hold sidebar conferences in private. "I see nothing sinister about it," Fields said.

Last week Fields declined to discuss what took place during several closed-door meetings. "This judge gets very upset when we talk about what goes on in chambers," he said.

Shook replied: "This judge doesn't get angry about anything." In an interview, he said the lawyers asked to retreat to his office. "They wanted to have sidebar conferences in chambers so the jury wouldn't hear them," Shook said. "It doesn't matter to me one way or another."

The litigants have paid about $180,000 for more than 9,000 pages of daily transcripts, which include the sessions in chambers. Although the transcripts are not available to the public, Shook said he instructed attorneys to provide copies to the press. It was not until last week that The Times obtained nearly all of the transcripts.

The documents show that in at least three cases there is no record of the meetings. These sessions are described as "in chambers not reported."

Before the trial, Fields said in interviews that he was outraged at plans by Anschutz's lawyers to portray Cussler as a "crazed racist and anti-Semite." They claimed in court papers that Cussler made derogatory remarks about blacks and Jews while exercising his screenplay approvals. The author has denied the allegations.

"They want to get these charges in front of a jury," Fields said, "so blacks and Jews will hate him."

Shook ruled that the alleged remarks were too prejudicial to be introduced as evidence. The transcripts reveal that Fields was vigilant about making sure no witness so much as suggested to the jury that his client had uttered a racial or anti-Semitic slur.

On March 27, Fields raised concerns in chambers about potentially damaging testimony by screenwriter David Weisberg.

"If he gets up there and says [Cussler] 'told me, "I don't want any more blacks around. I hate them" ' — that shouldn't be in. He can say anything he wants as long as he doesn't do that," Fields said.

Similarly, on April 11, Fields demanded to know in advance whether there was a possibility that "Sahara" director Breck Eisner might testify about Cussler's use of the "N-word." Shook reiterated that he would not tolerate any statements to jurors about bigotry. "If I think it is atomic-bomb prejudicial, then I will mistry the case," he said.

But the judge allowed Anschutz's attorneys to question "Sahara" producer Karen Baldwin about an insensitive remark Cussler allegedly made when she suggested bringing on Weisberg.

"Do we have to have more Jewish writers?" Cussler reportedly said to Baldwin.

Fields contended that Baldwin "just made up" the statement. "It doesn't have a damn thing to do with the issues before the court," he said.

Shook disagreed. "I don't think this is really a slur," he said.

Earlier in the trial, Anschutz attorney Alan Rader protested that Fields behaved inappropriately by telling a witness who referred to Tom Cruise, "You know who Tom Cruise's lawyer is?"

Rader said that Fields "announced to that jury, 'I represent Tom Cruise so I know best. I know more than this witness or any other witness.' It is outrageous and it is improper, and frankly, it was arrogant and it poisoned this trial."

After Shook denied a request for a mistrial, Rader shot back, "I believe Mr. Fields should be admonished and instructed never to pull that stunt again."

Shook replied, "Well, I agree. I don't think we should make statements that you represent Tom Cruise or any other movie star. I don't think we are going to hear any more of this from Mr. Fields or anybody else."

Anschutz's lawyers also accused Fields of coming "very close" during his opening statement to violating a court order that prohibited anyone from telling the jury the reason Cussler had fired his longtime publicist. In a sworn deposition, Cussler said he dismissed the employee for financial improprieties.

Cussler appeared to violate the order April 19 when he testified that Shook wouldn't let him explain the firing.

"What Mr. Cussler did yesterday, beyond doubt, was intentional," William Charron, an Anschutz lawyer, told Shook in chambers. "He had that smile on his face. He is no fool."

Shook concurred that Cussler's remark "was probably intentional" and summoned the novelist into his chambers. He told Cussler, "If it happens again, this case is going to be over."

Earlier, Shook said he wanted to warn Cussler "in open court on the record." But Anschutz attorney Charron balked.

"Your honor, if we are going to do that, I request that we do it in chambers," Charron said. "The problem is that this is not just litigated in the courtroom. It is also litigated in the press."

Shook replied, "I see. Good point. I agree."

The California Supreme Court ruled in 1999 that an L.A. County Superior Court judge violated the state's "open court" statute by improperly excluding the public and the press from all courtroom proceedings held outside the presence of the jury.

Judge David M. Schacter had sought to protect the litigants, actor Clint Eastwood and his former lover, Sondra Locke, from embarrassing disclosures about their personal lives. Locke claimed that Eastwood had tried to sabotage her directing career after their romance soured.

"The California Supreme Court spoke definitively and unanimously that you cannot conduct proceedings that should be part of the ordinary trial process in closed chambers," said Douglas Mirell, a 1st Amendment lawyer at Loeb & Loeb.

The judge's order in the Eastwood trial was appealed by KNBC-TV, The Times and California Community News. It is typical for media organizations to challenge intrusions on public access to the courts. But the transcripts show that lawyers for Anschutz, an industrialist who owns the Examiner newspapers in San Francisco, Washington and Baltimore, advocated keeping parts of the "Sahara" case closed to the press.

On many occasions, Shook appeared smitten with the attorneys on both sides, providing numerous compliments about the way they had been trying the case. This appeared to explain the wide latitude and free rein he gave them in a trial that has dragged on for 13 weeks.

On March 22, he said, "In this trial we have in my opinion some of the finest legal minds in the State of California in here."