Judge Nicholas G. Garaufis

Judge Explodes on Agnifilo – But Did He Also Blow Up the Trial?

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.

Mark Agnifilo as depicted by Marie White

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.

Lauren Salzman as depicted by Marie White

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.

Keith Alan Raniere as depicted by Marie White

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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K.R. Claviger

45 Comments

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  • As a defendant, always go for a trial.

    Raniere is lucky – in a certain sense, the weight and nature of his crimes may make a trial itself impossible.

    He is lucky too that he is in common law jurisidictions, with jury trials. In Europe it would be non-issue.

  • Some people disagree with Krclaviger take on a mistrial or appeal but he is on point according to a former prosecutor that I asked.

    Everyone is entitled to do process. It’s one of the corner stones of American Democracy. Due process is right up there with voting.

  • Krclaviger,

    Do you think it’s possible that Agnifilo was purposely trying to get the judge to explode- In your opinion-

    *****

    Why oh why did the judge not just call for a temporary recess………

    Great explanation of the legal complexities and procedures as well as constitutional relevant facts.

  • While this issue alone may not be sufficient to get Raniere and Agnifilo a do-over, I think Judge Garaufis needs to tread lightly from here on out. Unless there is a major screw-up – which I don’t think this is – appellate courts tend to look at the totality of errors in a trial when deciding whether to overturn the verdict.

    What this issue really points up is the need to allow cameras in federal courtrooms. Seeing what was going on would be much more instructive than simply reading about it in a transcript – especially if the cameras caught Raniere madly scribbling out his instructions to Agnifilo and talking loudly enough for the jury to hear while he was doing so.

    If we can have instant replay for a baseball game, why not for criminal trials-

    • Why no instant replay for trials-

      Cuz we can’t even have that shit for soccer, you asshole.

      Nobody fucken cares about what the judge did. It’s a non issue.

      Guess what, Claviger-

      The transcript is sufficient to demonstrate (for the appellate court) that Judge Garaufis did not suddenly ‘end’ the defense’s right to cross examine her, you dipshit.

      Agnifilo was badgering the witness even after being told to stop.

      The court had repeatedly tolerated Agnifilo’s unwarranted BADGERING of the witness. For fucken hours and hours.

      Agnifilo was badgering the witness by asking her the same types of things over and over, using different wording. He was disobeying the judge. The judge ended that shit, as per his authority.

      In essence, the defense attorney was refusing to follow the court’s instructions by not moving along from that line of questioning.

      Guess what, Claviger-

      Agnifilo wasn’t trying to get REAL answers at that point. He was simply trying to create a negative reaction from the witness by badgering her. The court is well within its discretion to END that line of questioning. Agnifilo had nothing else. His examination was over. The judge simply put that DOG on a leash.

      So EAT SHIT Claviger.

      Go visit your clients in the slammer ASSHOLE! 🙂

        • Assuming it is humor. If it’s not meant as humor, it assumes knowledge of the series of questions and answers leading up to the judge’s decision to end the questioning. Why would the prosecution and judge allow this type of questioning to go on for hours and hours in the first place- Assuming they did allow it, were they trying to give Agnifilo enough rope to hang Raniere, and then it got out of control-

  • Judge Garaufis knows what he is doing. I’m not so sure I can say the same about Agnifilo. From what I have been able to piece together about what happened in that courtroom, the judge’s actions were well justified, Agnifilo was well over the line. He had been warned, and he chose to continue his abusive line of questioning. He had broken down Salzman to the point where her answers had become incoherent. There was no point to continuing the questioning beyond causing her further distress, there were no facts to be brought forward. It was abusive and the court was not going to allow it.

    From my limited experience judges have fair degree of discretion in their courtroom. Judges maintain an orderly, somber and rational atmosphere in the courtroom, and maintain an authoritative air. Hence the judicial robes and the ritual standing when the judge enters. He represents authority, he represents Justice. They are in charge when it comes to what evidence may or may not be admitted. What testimony will or will not be considered relevant. The attorneys are not in charge, they don’t make the rules; if they feel ill used by a judge their recourse is limited. Agnifilo has the right to appeal when and if his client is found guilty, judge Garaufis in fact invited him to. He probably would have appealed a guilty verdict in any case. Whether he will be granted an appeal is another matter. Maybe judge Ggrafulo’s colleagues on the superior court will find judicial misconduct. I wouldn’t bet on it. The argument that Raniere has been denied his constitutional right to confront his accuser is absurd: Agnifilo cross examined Salzman at length. His line of questioning became abusive and was not bringing forth any ‘relevant and important facts’ and to a reasonable observer the questioning was not intended to. Rainiere does not have a constitutional right to bring forth tears in the witnesses against him.

  • Shivani’s new opinion piece reports that the judge said “I tried to cut off the line of questioning. You went right back. You were way over the line.” I don’t know where that comes from, but if correct, it shines further light on what lead up to this than what the first reports reflected, and suggests that the judge’s ending of questioning may have been justified after an earlier warning.

  • Garaufis is actually a “hell of a judge”. Do not consider he can just err so easy. He really knows what he is doing.

    The defense team has no hope, they now resort to the same bastard/idiot they shoud be defending, who, obviously, has taken them as fools.

  • Garaufis may make the laws in his courtroom but he does not make the laws for the United States and it’s judicial system. While he has the right to maintain order in his court, he cannot do so in a way which interferes with anyone’s legal rights. He violated the defendants right to a fair trial when he allowed his anger to poison the waters. The jury will not be able to operate fairly in the environment he has created.

    It is time for him to reflect on his actions and step down from the trial.

    • Let’s wait and see before passing judgment on the Judge.

      Unless you were in the court, you don’t have the entire picture of the line of questioning the defense was doing and how many warnings the Judge had given Raniere’s defense team before ending cross-examination.

      If it was the same question over and over to badger the witness and the defense team was asking questions from sticky notes provided by Raniere, then what was the defense team’s real intent-

      Transcripts will show what really went on instead of all this speculation.

    • “It is time for him to reflect on his actions and step down from the trial.”

      I agree 100%.

      I don’t like Raniere, but he has the Constitutional right to confront his accusers.
      That right trumps all other rights in that court room.
      That is the basis of American criminal law.

      This case already screams “MISTRIAL!”

  • So maybe this trail is going to be a dry run at the real trail-

    If Raniere wins his appell for a mistrial its a wash, rinse and repeat kind of thing-

    Will he be kept at the MDC again-

    Will the case be tried by the EDNY-

    How long does an appeal take for a decision to come about-

    Will he face charges in the NDNY before any appeal decision is made-

  • https://www.timesunion.com/news/article/Raniere-s-lawyers-ask-for-mistrial-in-NXIVM-case-13878519.php

    The prosecutor asked the woman how she feels about it now. “It was all a lie,” she said.

    She said Raniere’s pursuit of her ramped up in the weeks before her 18th birthday. After they shared a kiss on the couch at NXIVM’s offices, he turned the conversation to sex and asked her what she wanted for her birthday. When she told him she was too embarrassed to speak about it, he invited her to write on his hand. She wrote out “sex.”

    “He set me up, like a little deer,” she testified.

    A few days after her birthday, she said, Raniere took her to a NXIVM office space in Clifton Park’s Rome Plaza where a dingy mattress was laid out on the floor of what appeared to be a storeroom. He took off her clothes and performed oral sex on her, though she said Raniere did not actually have intercourse with her that time.

    As their relationship continued, Raniere began issuing commands about her weight — telling her to lose 20 pounds — and even her genital grooming. He also provided her with laxatives to help her lose weight. Similar orders from Raniere to his sexual partners within NXIVM were discussed by earlier witnesses.

    The woman eventually fell out of favor with Raniere after showing interest in another man. She said her virtual captivity on Wilton Court began on March 9, 2010, and lasted until late February 2012.

    • May 20 radaronline dug into nicki and her white BMW full of fellow groupies on Flintlock Lane. Neighbor(s) spoke of seeing a lot of activity at a house where Nicki used to live with Mack.

      The article’s title, “Sex Cult Still Going- Allison Mack’s Wife & Other Members Spotted Near Nxivm Base” could be called an understatement.

    • Here is the full clue:

      Blind Item #13
      A few enterprising leaders, including a former actress, of this former cult have started an escort service using some of the still brainwashed former members.

      Now who could that former actress be-
      And don’t say Kristen Kreuk.

  • Any chance you can re-post some of the videos you linked to on Youtube in 2018, especially the NXVIM “offical documentary” of Keith and the 45 minute SOP audio leak- I think the whole discussion here would benefit from getting an insight into WHY all those women and me actually followed him as their “Vanguard”.

  • I don’t “judge” the actions of Judge Garaufis in ending Agnifilo’s barrage of questions directed at Salzman. This had not been Salzman’s first and only moment of breakdown during Agnifilo’s cross-examination. She had been raw and vulnerable while testifying, had cried a lot and had been barely able to maintain any composure earlier in the day, too. It is counter-productive for Judge Garaufis to allow any witness to be badgered into a state which endangers that testifier’s mental or emotional stability. The judge is obliged to maintain the atmosphere of the courtroom for its purpose. It would benefit no one for Salzman to lose balance to the point where it could require medical assistance or hospitalization. (It might pleasure Raniere, though.)

    This can be seen as cumulative. After days of testimony with admissions of guilt on Salzman’s part, her breaking down could very well mean that she has started to be able to separate herself from Raniere’s domination. She could be reliving her 20 years of experience with Raniere from a perspective which is new to her, as maybe, (just maybe) she is in the process of removing her own blinders. Definitely getting free can come at great cost, with many, many breakdowns as one peels away the layers of conditioning, deception and its resultant hideous consequences.

    After 20 years involvement, Salzman has had nothing else but this all-encompassing environment, which included her own mother and sister. So if she is in the process of ending her dependency, of course it will be devastating, shattering. She has prison to anticipate. Her entire life must be questionable to her now.

    She is already in the process of paying for her mistakes by holding herself accountable for them, by facing herself. She could be not even halfway free of her destructive decisions, even as she is forced to testify as part of her plea agreement. She is publicly revealing that her allegiance to Raniere has been a long and terrible error. And yes, none but she can know how truthful she is being. This too is what Judge Garaufis has stated, that whether Salzman is truthful or not, he will not allow the courtroom to become a boxing arena – or anyone’s format for chaos.

    Judge Garaufis ended Salzman’s moment on the stand firmly. But after the jury was sent out of the courtroom was when Garuafis expounded about it, not in the presence of the jury. It was only then that the judge told Agnifilo, “I thought it was extremely excruciating. I tried to cut off the line of questioning. You went right back. You were way over the line.”

    Judge Garaufis also saw Raniere enthusiastically sending notes to Agnifilo on the spot, while Salzman’s testimony was being elicited by Agnifilo. Raniere was enjoying and encouraging and directing the line of Agnifilo’s questioning, and Raniere was quite animated about contributing to Salzman’s meltdown. Agnifilo looking like Raniere’s puppet makes it difficult to respect Agnifilo’s conduct as a lawyer. He appears to be manipulated by his client.

    As someone who was present in court said, Raniere left the courtroom smiling and even waving to people after Salzman was badgered enough to lose her self-control. This is Raniere’s second attempt at a mistrial. He still does not get it. He is not running this experience, not for himself or by manipulating anyone else. Fuck his executive success.

  • Could Lauren be recalled for cross-examination at a later date and then that way the defense would still be able to get their questions asked- And if Lauren was having a meltdown, wouldn’t it look worse for the defense counsel to continue firing questions at her- Perhaps the judge did Raniere’s team a favor.

  • Just wait until Mack gets on the stand. She will apply all of her acting skills and make Salzman look like the ameteur that she is. After all, Mack will be auditioning for her career after prison, assuming this softy judge decides that’s what is appropriate for her. What production company doesn’t want a REAL nutjob to play one in their show- What better way to be authentic-

    • Mack will twirl Garaufis right around her fingers. He will rise to the little, lost, victim girl’s defense and punish KAR for damaging her virginity, innocence and pride. This judge has no clue who he is as a man.

  • Garaufis erred and he did so seriously, just as he did with US v City of New York (https://www.nydailynews.com/new-york/federal-court-overturns-ruling-fdny-intentionally-discriminated-minority-applicants-article-1.1343541).

    He had a number of remedies to defuse the situation, but he chose the worst one. He is noted for having a temper, recently exploding because the counsel for the defense in a certain case sent an associate to a hearing rather than a partner.

    This is not good news.

    • Garaufis is a 70 year old man who thinks every woman is his own daughter in need of protection.
      Lauren Salzman is a 42 year old woman who has been a hard core criminal for the better part of 20 years.
      Garaufis needs to retire ASAP.

  • A mistrial on appeal doesn’t change the fact Raniere will be found guilty once again the 2nd time around.

    He might not even be able to afford the same legal counsel round 2.

    Let’s not forget the NDNY is warming up in the bullpen.

  • I think the judge should remove himself from the case, He has thus far proven himself to be as competent as Lance Ito. (simpson trial). This judge will be able to practice psychology without a license, which appears to be his first love.

    What the hell kind of drama queen bull shit is “broken person” or “Nervous breakdown”-

    • Obviously, he’s probably read a pre-trial report on Lauren indicating she’s probably badly shaken that the spiritual leader she looked up to allegedly encouraged her to do things she thought were legal, but now knows is illegal, and she is criminally culpable for her actions. It’s affected her and the judge doesn’t want her to have a meltdown in his court. That’s all.

  • I agree that Agnifilo has a very strong argument. The judge should stop wasting time and money, stop the trial and start all over again with a different judge and jury. However, the judge’s ego has obstructed justice.

    • Why don’t you get tortured first- Torture is inefficient and dangerous. If you want to live in a country where torture is accepted, then get prepared to be tortured for any reason. Maybe you’ll know that the real torture begins when you can’t take it anymore. That’s why people die under torture, not because they are pussies but because they are « pushed » far far far beyond their limits. So don’t talk about torture so lightly!
      And don’t argue stupidly like I’m a NXIVM supporter or so… I’m a right wing guy but I’m definitely against torture.

  • From Albany Times-Union

    https://www.timesunion.com/news/amp/Raniere-s-lawyers-ask-for-mistrial-in-NXIVM-case-13878519.php-__twitter_impression=true

    A federal judge rejected NXIVM co-founder Keith Raniere’s request for a mistrial Thursday morning.

    Senior U.S. District Court Judge Nicholas Garaufis made his ruling moments after taking the bench and without hearing arguments from Raniere’s lawyers or federal prosecutors.

    Once that decision was done, Garaufis chastised Raniere for speaking about the case in court in a voice that he said was loud enough for the jury to hear.

  • Come off it. No room for cultish baiting and histionics in Judge garaufis’ courtroom. This is humane justice, not the nxivm bear-pit.

  • In the previous piece here, a commenter who was apparently in the courtroom and posting using the moniker “Sick man with a sick defense team,” reported that it was a longer string of questions which lead up to this, being directed by Raniere, who is perhaps essentially trying to continue his abusive of a victim in the courtroom:

    “Once we see the questions the Agnifilo was pounding away at Lauren Salzman, people will have a better understanding of why the Judge cut him off. It’s a you had to be there kind of thing to fully understand by those who were not in attendance.

    Raniere was writing things on post-it notes, handing them to his counsel at the table. Teny Geragos walked these questions up to Marc Agnifilo who would them rapid fire them at Lauren Salzman.

    Several questions were asked and answered and asked again. “Did you love Raniere on such and such a date”- Agnifilo would ask another date.

    Knowing the FR gets the transcripts, it would be interesting to see the line of questioning the Judge finally shut down.

    100% Raniere was enjoying his torture of Lauren Salzman via his puppet Agnifilo. Only goes to show, some lawyers will do anything for a dollar.”

    As I understand it, typically the judge would remedy this with some sort of instructions to the jury to ignore what occurred. He might also frame it in terms of admonishing Agnifilo for being used by Raniere to badger the witness.

    I think a mistrial would actually be to the disadvantage of the defense, because by the time a new trial rolled around, the witnesses would only have distanced themselves that much further from what they did, and from Raniere’s influence, and more likely to respond assertively from a point of perspective that their good intentions had been exploited and even abused.

About Frank Parlato

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