Primer On Federal Criminal Trials – Time To Start Doing Our Homework

With fewer than 60 days to go before the start of the trial in the case of the U.S. v. Raniere Et Al, it’s probably a good time for all us to review exactly what goes on in such trials.

Because of time limitations, most TV shows and movies gloss over some of the stages of a federal criminal trial – especially in terms of how long each stage lasts. And they very rarely include any details regarding the plea bargaining process that precedes every trial.

With apologies to those Frank Report readers who prefer more scintillating posts, here’s a summary of what will take place in the upcoming trial.

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Let’s start off by noting that very few federal criminal cases actually go to trial.

How few, you ask?

The answer is 2%!

So, the very fact that there might be a trial makes this an unusual case.

The vast majority of federal criminal cases end up with plea deals because the defendants are unwilling to risk going to prison for 20-30 years – and opt for plea deals that include sentences of 3-5 years.

In a lecture he gave a few years ago, U.S. District Court Judge Jed Rakoff, who serves in the Southern District of New York, noted how such plea deals have skewed the criminal justice system – and left many innocent people behind bars:

“Plea bargains have led many innocent people to take a deal. People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today”.

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As of right now, I would estimate the probability of each of the defendants going to trial as follows:
– Keith Alan Raniere: 100%
– Allison Mack: 100%
– Clare Bronfman: 100%
– Nancy Salzman: 80%
– Lauren Salzman: 70%
– Kathy Russell: 100%

But as more evidence is turned over to the defense – and more motions about what evidence can be used by the prosecution are decided in its favor (which, given the weakness of the objections that have been raised by the defense attorneys, is likely what will happen) – those percentages could change dramatically.

It’s also quite common for plea deals to come together just before the start of a trial because that’s when the reality of what’s at stake becomes crystal clear to defendants.

Finally, if one defendant decides to take a plea deal, that will greatly increase the likelihood that others will do the same.
In the end, it could just be The Vanguard going to trial – or maybe just The Vanguard and Allison Mack.

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At the outset, a defendant in a federal criminal case who has chosen to go to trial has to decide whether they want to have a bench trial or a jury trial.

Bench trials are conducted entirely by the judge: i.e., he decides all the legal questions that come up in a case – and all the factual ones as well. And it is the judge who decides the ultimate question of guilt or innocence.

In jury trials, the questions of fact are decided by the jury – and it is the jury that decides the ultimate question of guilt or innocence.

In the case at hand, all six defendants have opted for jury trials.

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Voir Dire
This is the stage of the trial when individual jurors are interviewed – and those who are selected are empaneled to hear the case.

In this case, the presiding judge, Nicholas G. Garaufis, has established the following schedule for the Voir Dire process:
– March 18th: Both the prosecution and the defense must submit proposed jury questionnaires to the court. Thereafter, the judge will review both versions – and put together the version that will be used during the evaluation of potential jurors.

– April 8th: All the potential jurors who have been called for this case will fill out the version of the questionnaire that Judge Garaufis has approved. In this regard, the judge has indicated that he plans to start out with a pool of 600-700 potential jurors.

– April 15th, 16th, and 17th: The judge will oversee interviews of the prospective jurors. At this time, the prosecution and the defense attorneys will be allowed to ask prospective jurors a variety of questions in order to identify any possible biases or conflicts-of-interest.

The judge will likely establish some “ground rules” as to what types of questions can be posed to prospective jurors – and he will undoubtedly oversee the questioning.

The prospective jurors will be brought into the courtroom one at a time in order to reduce the risk that the questioning of one juror could influence how any other jurors respond to similar questions.

Each side may ask the court to strike prospective jurors “for cause” (e.g., the juror has a family member who was involved in a cult; the juror has been convicted of helping illegal immigrants enter the country; etc.).

In addition, each side will have a limited number of “peremptory challenges” that can be used to strike potential jurors without identifying a reason (These cannot be used to exclude potential jurors based solely on a characteristic like age, ethnicity, gender, race, etc.).

At the end of this process, there will be twelve individuals empaneled as the trial jury. In addition, there will also be several “alternates” identified (These “alternates” will hear the case in the same manner as the jury – and will be available to replace any member of the jury who is unable to complete their duties).

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Opening Statements
On the opening day of the trial – which is currently scheduled to start on April 29th – each side will present an “Opening Statement” in which it will summarize its view of the case and outline what it intends to present to the jury. The judge will set some limit on the amount of time for these presentations.

The prosecution will go first – and then one defense attorney will be allowed to speak on behalf of each of the defendants.

Each defendant’s attorney will also have the option of postponing their opening statement until after the prosecution has finished presenting its case. Given that there are six defendants in this case, my guess is that at least a couple of the defense attorneys will opt to do this.

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Prosecution Evidence & Witnesses
The prosecution will present its case by calling witnesses – and offering evidence into the trial record. Since it has the burden of proving each defendant’s guilt, it has to provide enough testimony and evidence to prove, beyond a reasonable doubt, that each defendant committed each element of the crimes with which they’ve been charged.

The prosecution is not allowed to call any of the defendants to testify as a witness because of their Fifth Amendment right against self-incrimination.

This stage of the trial will likely be fairly slow-paced – especially because the defense attorneys will be raising objections throughout the prosecution’s presentation in an effort to limit what the prosecution is able to get on the record for the jury to consider.

The defense attorneys will also have the right to cross-examine each witness that the prosecution calls to the witness stand. And the prosecution will have the right to re-direct questions to any witness who is cross-examined by the defense.

In a recent Status Conference, Judge Garaufis indicated that he plans to run the trial from Monday through Thursday each week – and the prosecution indicated that it would likely take at least 20-days for it to present its case.

Thus, this stage of the trial will likely take 5-6 weeks if not more.

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Motion For Directed Verdict
At the close of the prosecution’s case, the defense often asks the court for a “directed verdict” or a “judgment of acquittal” – which the court will grant if it concludes that the evidence and testimony presented by the prosecution are “insufficient to sustain a conviction” (These motions generally take place without the jury in attendance).

Such motions are rarely granted – and when they are, the prosecution has the right to appeal the decision.

Given the amount of hard evidence in this case – and the competency of the prosecution’s team – there is virtually no chance that this type of motion will be granted.

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Defense Evidence & Witnesses
Following the conclusion of the prosecution’s presentation of its case, the defense will have the opportunity to introduce evidence – and call witnesses – to undermine the prosecution’s case.

The defense, however, does not have to put on a case – and can simply “rest” at this point in the trial and argue that the prosecution has failed to meet its burden of proof.

Given the number of “show dogs” on the defense team, it is highly unlikely that this will happen – especially not with respect to Keith Raniere, whose lead attorney is Marc Agnifilo, and Clare Bronfman, whose new lead attorney is Mark Geragos.

The prosecution will also have the right to cross-examine each witness that the defense calls to the witness stand. And the defense will have the right to re-direct questions to any witness who is cross-examined by the prosecution.

Although each defendant will be allowed to present evidence and call witnesses to rebut the prosecution’s case, none of them will be obligated to testify on their own behalf.

This is often the most climactic point in a trial as the jury ponders what it means when a defendant refuses to take the stand to testify.

Many defense attorneys recommend that their clients not take the stand. In the case at hand, I’d estimate the likelihood of each defendant taking the stand as follows:
– Keith Alan Raniere: 100%
– Allison Mack: 50%
– Clare Bronfman: 0%
– Nancy Salzman: 20%
– Lauren Salzman: 20%
– Kathy Russell: 0%

My estimates could be way off, however, because of the “Raniere factor” in this case. To the extent that his co-defendants are still under Raniere’s control and influence, it’s entirely possible that they could all choose to testify if he instructs them to do so.

Because this is such an important aspect of the trial, the judge is actually required to instruct the jury that the defendant has a constitutional right not to testify, that the choice not to testify cannot be held against the defendant, and that the defendant is presumed innocent regardless of whether he or she testifies.

But juries are made up of people – and, regardless of the judge’s admonitions, some jurors still look unfavorably upon defendants who decline to testify.

It’s hard to predict how many witnesses the defense will choose to call until the prosecution has presented its case – but given Marc Agnifilo’s prior claims that he plans to put on a parade of witnesses, it’s quite likely that this stage of the trial will go on for at least 3-4 weeks if not longer.

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Closing Arguments
Each side will have an opportunity to summarize the case – and identify flaws in the other side’s arguments and/or evidence.

For this stage, the order is reversed – with the defense attorneys going first and the prosecution getting in the last word before the case goes to the jury.

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Jury Charge
Just prior to turning the case over to the jury, the judge will issue various instructions and/or questions regarding the elements of the charged offenses – and the standards that the jury must apply in reaching a verdict.

Usually, the judge will ask the prosecution and the defense to submit a proposed “jury charge” – and will use those to craft what is ultimately delivered to the jury.

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Jury Deliberations & Verdict
The jury will meet to review the evidence that has been submitted – and will vote on each charge against each of the six defendants.

In order for anyone to be convicted of any of those charges, the jury must reach a unanimous 12-0 verdict. The same is true for an acquittal.

If the jury cannot reach a unanimous verdict on any given charge, the judge will likely encourage them to go back and deliberate some more. But in the end, if no consensus is reached, the judge may simply declare a mistrial on that charge.

It is not unusual for there to be some unresolved charges in a complex case like this one. Nor is it unusual for there to be a mix of acquittals and convictions with respect to some charges and/or some defendants.

It is unlikely that the jury will be sequestered during its deliberations in this case. But, as Judge Garaufis has already made clear, they damn well not be reading newspaper stories about the case or following it on television or social media.

The judge has already indicated that he’s going to instruct all the jurors that if any of them attempts to discuss what they heard about the case on the news – and/or read about the case in the newspapers or social media – that is to be reported to the judge immediately.

He’s also indicated that he will report such misconduct to the U.S. Attorney – which could result in criminal charges being brought against the miscreant juror.

One of the reasons why there will be several alternate jurors selected for this case is to ensure that this kind of misconduct does not result in a mistrial.

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Post-Trial Motions
If the jury finds a defendant guilty on any charge, the defendant can bring a variety of post-trial motions: e.g., Motion for Judgment of Acquittal, Motion for a New Trial, etc.

As might be expected, these post-trial motions are rarely approved by the presiding judge.

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Sentencing
Since none of the charges involved in this case involve the potential for capital punishment, the judge will mete out sentences to any defendants who are found guilty of any charges.

Prior to doing so, the judge will receive a “Presentence Report” on each convicted defendant from their assigned federal probation officer. That officer will have undertaken an investigation into a range of factors including the defendant’s family background, education, employment, physical and mental health, criminal history, finances, etc. – and the nature of the crimes for which they have been convicted.

Each “Pre-Sentence Report” will delineate the range of possible terms of incarceration set out in the federal sentencing guidelines – and indicate how the factors the probation officer has investigated and analyzed may be relevant for the court’s determination of the appropriate sentence for the defendant.

The “Pre-Sentence Report” can also recommend sentencing “enhancements,” which are additional years that may be warranted if there are “aggravating factors” – and it can recommend a sentence below the guidelines if there are sufficient “mitigating factors.”

The judge will also receive recommendations from both the prosecution and the defense as to what each sentence should be within the boundaries of the federal sentencing guidelines.

At the end of the day, this is where the presiding judge has the most power and authority. In this regard, appellate courts rarely second-guess trial courts in terms of the sentences imposed on defendants who have been found guilty.

Regardless of everything that’s gone on up until this point, it will be up to the judge – and the judge alone – to decide the punishment for each defendant who has been found guilty of a crime.

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Appeals
Any defendant who is found guilty has the right to appeal that verdict. Such appeals are almost guaranteed if any of the defendants in this case are found guilty of anything.

The bigger question is whether the judge will allow any convicted defendants to postpone serving their sentence until their appeals have been resolved.

In this case, I’d say the chances of that happening are not very high.

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Miscellaneous
Throughout the trial, the judge may be asked – often in the presence of the jury – to decide questions of law. Usually, these questions concern objections to testimony that either side wants to present.

Sometimes, the judge will have the jurors leave the courtroom while the lawyers present their legal arguments for and against such objections. Thereafter, the judge will issue his ruling – and bring the jurors back in to continue the trial.
A ruling by the judge does not indicate that the judge is taking sides. All the judge is saying is that the law does – or does not – permit a certain question to be asked.

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That’s all for now folks…And don’t worry, there’s not going to be any test on this stuff.

Next, we’ll take a look at some of the individuals who may be called as witnesses by the defendants.

K.R. Claviger