Editor’s Note (11:00 AM): Reports from the courtroom this morning indicate that Judge Garaufis has dismissed Marc Agnifilo’s mistrial motion without even conducting a hearing on it (As noted in the post below, it was expected the judge would dismiss the motion). The problem, however, is that this is definitely an issue that will be raised on appeal – and one that may end up in a re-trial for Keith Raniere. Regardless of how things turn out, yesterday’s action by Judge Garaufis was inappropriate and overreactive. Let’s hope that’s the last of those types of problems in this trial.

Late in the day yesterday, Judge Nicholas G. Garaufis abruptly interrupted defense attorney Marc Agnifilo in the midst of his cross-examination of Lauren Salzman – and ended the questioning.

Although we had not yet received the transcript from yesterday’s session, we did provide a summary of what our on-the-scene reporter, Dianne Lipson, heard as she listened to the exchange between Judge Garaufis and Agnifilo.

That exchange has now resulted in the filing of a formal motion for mistrial by Raniere’s attorneys – a motion that will likely cause at least a temporary delay in the trial while the judge holds a hearing on it.

The motion is quite detailed – and includes a recitation of the exchange that resulted in Judge Garaufis’ decision to end the cross-examination:

Mr. Agnifilo: When you were in DOS, before anybody was arrested, were you

doing things intentionally to break the law?

Ms. Hajjar: Objection.

The Court: That requires a legal conclusion

*****

Mr. Agnifilo: Was it your intention to hurt people or to help people?

Ms. Hajjar: Objection.

*****

Mr. Agnifilo: What was your intention when you were in DOS?

The Court: You may answer.

Ms. Salzman: My intention was to prove to Keith that I was not so far below the ethical standard that he holds that I was – – I don’t even know how far below I am. I was trying to prove my self-worth, and salvage this string of a hope of what I thought my relationship might someday be, and I put it above everything else; I put it above my friends and I put it above other people, helping them in their best interest. That’s what I did when I was in DOS.

The Court: Okay, that’s it. We are done.

Mr. Agnifilo: Okay Judge. Thank you.

The Court: You are done.

Mr. Agnifilo: I know. I am done.

The Court: No, I said you’re done

Mr. Agnifilo: I know. I am.

The Court: So you can sit down.

At that point, the prosecution indicated that it had no further questions for Lauren – and she was excused

****

What the transcript does not show is that Lauren had what several courtroom observers have termed “a complete meltdown” when she was giving her final answer.

Nor does the transcript show if the anger and fury that were reportedly very apparent in Judge Garaufis’ voice when he instructed Agnifilo that the cross-examination was over – and when he ordered him to sit down.

All these theatrics happened in front of the jury – which likely assumed that Agnifilo had done something wrong.

*****

As set forth in today’s mistrial motion, Agnifilo is raising several objections to the way that Judge Garaufis handled things yesterday.

To begin with, he cut off Lauren just at the point that she was starting to explain that as a member of DOS, she was trying to help people – and working in their best interests.

In addition, the judge not only truncated that response, he also cut off any further cross-examination of Lauren.

Next, after the jury had been dismissed, the judge stated that Lauren “…is a broken person, as far as I can tell. And whether she’s telling the truth, whether the jury believes her, I think it is absolutely necessary that there be a certain level of consideration for someone’s condition”.

He went on to say that “I had a crisis here. And not in my courtroom”.

*****

Agnifilo argues in his motion that the judge’s decision to terminate Lauren’s cross-examination makes it impossible for his client, Keith Raniere, to get a fair trial.

In doing so, he quotes from a 1970 U.S. Supreme Court case that states, in relevant part, that “[i]n almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S. 254 (1970).

Agnifilo goes on to argue that Judge Agnifilo’s actions also violated Raniere’s Sixth Amendment rights – which guaranty that a criminal defendant “shall enjoy the right . . . to be confronted with the witnesses against him.”

The mistrial motion further states:

“This is a critical cooperating witness. The government—who undoubtedly views her as a co-conspirator and not a victim—solicited and finalized her cooperation. The government then chose to put this witness on the witness stand in a very serious case where the possibility of life in prison is in the balance. If this witness is indeed “damaged,” that is not the fault of the defendant who is, after all, seeking to demonstrate her lack of credibility. The jury must be able to see this witness for whatever she is—good, bad or indifferent—without the Court saving her by stopping her mid-testimony and ordering the defendant to ask her no more questions. This deprived Raniere the ability to confront Ms. Salzman effectively and elicit evidence which was favorable to his defense. See Gordon v. United States, 344 U.S. 414, 423 (1953) (trial judge’s discretion ‘cannot be expanded to justify a curtailment which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony.’)

Our view and the view we were trying to share with the jury was that Ms. Salzman’s difficulty with answering these questions was due to the fact that because she truly believed DOS was a positive influence on her and others (prior to seeing the discovery and undergoing the change in perspective to which she admitted) she was struggling to identify how exactly she broke the law given her outlook at the time she engaged in these actions. While her actions may or may not take on a different dimension in hindsight, her actions at the time were not intended to be hurtful. By stopping this examination and preventing wholesale the defendant’s ability to develop this theme – which was at the core of the defendant’s opening statement and was developed through other witness’ at this trial – the Court impermissibly intervened into the facts, prevented the development of a central line of cross-examination and then scolded counsel sternly in front of the jury, all in the interest of minimizing the emotional upset of a cooperating witness”.

*****

And then comes what could turn out to be the coup de grâce in terms of whether this case will be upheld on appeal (Since Judge Garaufis will be the one deciding the mistrial motion itself, there is little chance of it getting approved).

“While the Court’s concern for the cooperating witness as a person is admirable in the abstract, the Court could have done many things short of announcing the end of cross-examination sternly and without warning. The Court could have, for instance, given the witness a break or adjourned for the day. But the Court opted to cause the jury to believe unfairly that defense counsel had done something wrong to a witness in a case with highly sensitive issues and to fully terminate a critical cross-examination without any notice or warning whatsoever”.

And therein lies the problem.

Judge Garaufis had lots of options for handling yesterday’s situation.

And not only did he choose the most radical option – terminating the cross-examination of Lauren Salzman – he did so in such a way that he also discredited Mark Agnifilo in the eyes of the jury.

*****

It’s hard to see how Judge Garaufis can extract himself from the mess that he himself created.

Although it’s possible that he could allow the defense to continue its cross-examination of Lauren, even that may not be enough to undo the damage he did yesterday.

As Agnifilo concluded in his mistrial motion: “There is no coming back from this. The damage is done. The witness’ cross-examination has been ended. Counsel has been dressed down in front of the jury. There is no remedy.

We move for a mistrial”.

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