By: Omar W. Rosales, J.D.
On Wednesday, May 22, 2019, the presiding U.S. District Judge Nicholas Garaufis abruptly ended the questioning of prosecution witness Lauren Salzman by defense attorney Mark Agnifilo in the trial of Keith Raniere.
Agnifilo had been warned several times that his questions were becoming repetitive. The question on many minds is will this be sufficient grounds for a successful appeal? The answer, I believe is no.
What we see on TV is not the reality of federal court. Hollywood has glamorized the practice of ‘Aha!’ or ‘Gotcha’ moments as attorneys break down witnesses into puddles of tears. In practice, this almost never happens. The majority of a trial is tedious, leads to a buildup, and forces the jurors to make decisions based on a limited and orchestrated retelling of the truth. The jury can also decide the credibility of a witness. As one Federal judge said, “You can believe all of it, some of it, or none of it.”
At this point in the trial, the prosecution has laid down a solid case. Testimony about the depravity of defendant Raniere and his torture room has shocked people from around the world. The evidence and his trial are not getting better for the man known as Vanguard. In fact, daily it is getting worse.
We’ve heard tales of steel dog cages for humans, remote control puppy butt plugs, studded leather paddles, rape, torture, abortions for athleticism, mad jealous bouts of the leader of Nxivm locking himself in the bathroom or confining a woman in a room for two years and teachings such as ‘experiencing pain is the highest expression of love’. And it never stops. We keep learning more and more about this creep and dangerous one at that.
Raniere’s twisted plans to create an Army of Slaves, one million strong, to infiltrate government, and take over harkens back to the sick mind of Charles Manson and his desire for followers to start the Helter Skelter race war. After the war, Manson would step up and rule the apocalyptic wasteland. Raniere seems to have envisioned a not entirely dissimilar approach.
Testimony has revealed the sick mind of a sadist. Not content with physical exercise as punishment, Raniere revels in creating new levels of pain and humiliation, while at the same time degrading women to be less than dogs. Would you torture your dog with a cauterizing iron? Yet Raniere encourages his female devotees to ‘feel the pain, embrace the love’. Because pain is love, right?
Agnifilo’s questioning of Lauren Salzman was designed to discredit the witness. Agnifilo had already made the point to the judge and jury that Salzman was a criminal and she shouldn’t be trusted. Yet, he persisted. As he was fed post-it notes by Raniere, Agnifilo continued the questioning of the witness to break her. Raniere knew Salzman’s weak spots and honed right in. The end result was a witness sobbing and admitting to her crimes. Something she had already done. No new ground was covered.
The Confrontation Clause of the U.S. Constitution guarantees the right of a defendant to confront the witnesses arrayed against him. Raniere was afforded that opportunity. Agnifilo questioned the witness for over an hour. And, again, Agnifilo was warned by Judge Garaufis that his questioning was repetitive and unnecessary. Agnifilo ignored this advice, and kept on pounding the witness. Kept beating up the witness, kept hitting at the victim. What new ground is covered if Salzman admits that she is a criminal again? The judge, the jury, and the world already knew this: Salzman previously pled guilty to racketeering and racketeering conspiracy. She admitted it in testimony.
Agnifilo requested a mistrial? How did he get to the point of requesting a mistrial? By Agnifilo purposely ignoring the judge’s instructions. And causing a witness, who was also a victim of torture, to break down.
Agnifilo created the problem. He asked the judge for a mistrial to fix the problem he created. The judge denied his motion.
On appeal, Agnifilo will almost certainly argue that Raniere’s rights under the Confrontation Clause were violated. Is this a good argument? I doubt it.
The sheer weight of the evidence is against Raniere by multiples. The government has Raniere on audio, on videotape, on email, on text message. Multiple witnesses are making the same claims against Raniere. He was the head of a criminal enterprise, and he enjoyed torturing women. That Raniere was a child rapist. That is what the evidence is showing.
If Lauren Salzman’s entire testimony was thrown out, it would not make any difference in this case.
That’s the test, to me. Moreover, as I said, the problem was created by Raniere’s own attorney. Agnifilo was warned multiple times by the judge that his questioning was needlessly repetitive.
Agnifilo was told to move on. He ignored it. The eager defender kept up – seeming to dance to Raniere’s directions with his post-it notes. Notes from the Monster. ‘Did you love Raniere?’ ‘Are you a criminal?’ ‘Did you Love the Pain?’ It seemed that Raniere was reliving his sick and twisted fantasy in the courtroom itself as the witness struggled to hold on.
The fact is, Agnifilo had plenty of time to question Lauren Salzman. He deviated from the Court’s instruction. He succeeded in breaking Lauren Salzman. But what did he win? A frustrated judge? An upset jury? Win the battle, lose the war is not a good trial strategy.
But what do we know? Keith is, I have been told, the world’s smartest man. Let’s see how those smarts play out. We will know, I suspect, pretty soon after the jury, having heard all the evidence, steps into the jury room to deliberate. I doubt the jury will be out too long before coming back with a verdict.
Why is Judge Garaufis showing so much consideration for the mental health of the sadistic Lauren Salzman?
Lauren tortured and manipulated people for over twenty years in a massive life of crime.
But Lauren can not tolerate five hours of cross examination.
Cry me a river.
The young woman Dani was one of Lauren Salzman’s many victims.
Dani was locked in a room for almost two years,
An ordeal which Dani must reckon with for the rest of her life.
Is Judge Garaufis demonstrating as much compassion for Dani as he has for the rotten, horrible terrorist Lauren Salzman?
Judge Garaufis is showing himself to be a typical appointee of the RAPIST Bill Clinton.
Dani is being questioned by the prosecutor. It was defense questioning of Salzman that set the Judge off. If the defense crosses any boundaries with Dani, I bet there will be an even more severe reaction. No matter who appointed the Judge.
Omar thanks for the uplifting news!
Now go out and get a more professional looking portrait photograph of yourself.
I.e. in a suit!!!!!
That is a nice picture of Mr Rosales.
I am not trying to be mean. I am trying to be helpful.
Even in the unlikely event of a re-trial being granted on appeal, I don’t see what the defense would gain. It’d be the same evidence and the same testimony. Of course with any trial, no matter how hopeless for the defense, there’s always a chance for acquittal. But Agnifilo is going to appeal a guilty verdict in any case. It’s always worth a shot; the Boston Marathon bomber’s attorneys have been filing endless appeals ever since his conviction. (They’re appealing even though they accepted the prosecution’s case as true in facts.) None of their appeal requests have been granted, or have any hope of ever being granted, yet they continue to file.
A retrial is always good for a defendant. Witnesses die, their memories fade, or some may not be within the subpoena power of the Court and do not wish to voluntarily appear a second time. It also provides the defense with an opportunity to haul out previous testimony if a witness says something different the second time around.
That said, mistrial are rarely granted for obvious reasons and Omar’s reasoning is persuasive.
The defendant also gains a new jury, and a new jury could find Raniere to be not guilty.
I don’t think a retrial in this case would be to Raniere’s advantage, because the witnesses aren’t old enough to be at much risk of passing on, and are still in the ongoing process of distancing themselves from the group. Down the road they will be even clearer about how Raniere manipulated and took advantage of them, and probably more bitter about it as well; the testimony of someone like Lauren Salzman, who is out not much more than a year and still somewhat equivocal about it, would be likely to be more like that of Dani, who shows that she has had plenty of time to reflect on and analyze the position she was in.
I would just be worried about any witnesses from foreign countries who cannot be compelled to testify by subpoena. It is obviously an ordeal to take the stand for days, testify about very personal and traumatic issues, and then be subjected to cross-examination. Coming back voluntarily a second time would be a huge ask.
A second time should be easier.
Question for Omar:
Thanks for your well-reasoned post. I do not doubt your conclusions but was trying to think through the “what ifs”.
Assuming the Judge erred, would an appellate court reverse counts upon which Ms. Salzman provided absolutely no testimony? For example, if the jury convicted on child pornography, and Ms. Salzman gave no testimony whatsoever relating to this count, could defendant still claim that he was denied a right to confront witnesses as to that count?
Seems to me that the Court’s comments and curtailment of testimony, can’t be said to have “infected the entire proceeding”. Is a complete reversal the only option under these circumstances if an appellate court believes that the Judge erred?
Good question CaLawyer. If the Second Circuit (U.S. Court of Appeals for the Second Circuit) rules that Keith’s conviction was prejudiced or tainted due to abrupt end of the cross examination, it would not automatically necessitate a new trial. If the grounds for appeal were the cross, then the Court of Appeals could order a retrial (reverse and remand) on the tainted count. It would not affect the other counts at trial.
However, as a good defense attorney, Agnifilo would argue that the entire trial was tainted due to the way he was dressed down by the Court. But, again, I don’t think this is reversible error because Agnifilo created the condition in the first place. If the cross examination lasted almost five hours, that is plenty of time for Aggie to discredit and impeach (the legal term for discrediting) the witness.
The Appellate Court should only reverse the conviction on those counts where Lauren’s testimony was relevant. However, again, this is a LONG SHOT due to the fact that Agnifilo was warned that he was: 1) off topic, 2) repetitive, and 3) already made his point. The Justices at the Court of Appeals don’t operate in a vacuum. So, they don’t have to follow the law precisely. They can just rule that the evidence was so overwhelming already, that it would not have made a difference even if Lauren didn’t testify. So, I think the appeal is a long shot due to the legal basis and sum of the proceeding.
The point that Lauren Salzman’s testimony could be discarded and not impact the case’s outcome is a much appreciated and very useful indicator. I am taking this “taste-test” with me, okay?!
Question for Omar:
Assuming the Judge did err, wouldn’t an appellate court only reverse counts for which she provided testimony (perhaps crucial testimony)? For example, if the jury convicts on child pornography counts, and Lauren Salzman provided no testimony whatsoever on that subject matter, then how can the defendant claim to have been denied a right to confront any witnesses as to those charges.
From what I have seen, the Judge’s comments can’t possibly rise to the level of “infecting the proceedings as a whole”. So would an appellate court say that a mistrial motion should have been granted as to all counts?
See my answer above. Also, the Confrontation Clause doesn’t have to be taken literally. For instance, if Keith murdered someone, he would not need to (or be able to confront) the victim/decedent. But Keith would be able (through his attorney) to cross examine the medical examiner (ME), investigating agent, forensics or blood splatter expert, etc., that testify about Keith’s guilt.
For a child porn case, the Defendant would be able to cross examine the DHS agent or FBI agent who traced the suspect’s IP address or copied his hard drive and located the files, etc. The file is usually a huge file with thousands of images. Pretty horrible stuff.
Omar – Thanks for this reassuring article. I wondered if Agnifilo would use the same technique against the other victims, resulting in the same outcome. What would happen if he did?
Dani is obviously a strong and intelligent woman for holding out against KAR and his minions for so long. If anyone can endure cross examination, she can.
He could absolutely do it again. That’s his job. Impeach the witnesses. But again, the evidence is so overwhelming. How does he impeach a tape recording or video of Keith? Or Keith’s emails?
I apologise in advance for this not having anything to do with the trial but it has to be seen to be believed. This is what the British Army has become😭
I am so sick of the Left & the Right in the United States it is starting to make me nauseous.
I’ve been crying for Britain since the soldier Lee Rigby was brutally murdered by Muslims on the streets of London.
Winston Churchill would be spinning in his grave.
Rule Britannia, Britannia Rule the Waves.
Britons Never,Never, Never Shall Be Slaves!
Basit Igtet news:
I think Basit’s campaign would come to a screeching halt if the Libyan citizens found out the monster he’s married to.
The only baby Keiths giving to Lauren is a commissary baby. Her belly is going to get fat with all the bread and beans.
Thanks for this analysis.
I think that due to sketchy first reports that only covered the judge’s final rebuke of Agnifilo, it was easy to miss the big picture that the questioning had dragged on for a long time and become abusive, and Agnifilo had previously been warned about it. If this point is appealed, the whole transcript will be reviewed and the attorney’s overall conduct will not be looked upon favorably.
And for all of the mad schemes of Keith Raniere both Lauren Salzman and Allison Mack were eager and willing co-conspirators.
As were the Bronfman sisters and Nancy Salzman.
But when questioned about it all they have to do is turn on the waterworks and play the victim card.
“BOO HOO HOO we were victims.”
“We were only trying to make a better world through blackmail and extortion.”
All of the NXIVM defendants should rot in hell.
Shadow, I agree with you 100%. If Raniere was still loose, all those women would still be doing his evil biddings. They are not sorry, just sorry they all got caught!
“They are not sorry, just sorry they all got caught!”
And that is the sad part.
The Salzmans are unfit for any job outside of a cult and Mack has ruined her reputation and career.
Maybe Clare has learned a lesson after squandering 100 million dollars.
Or maybe not.
Whenever Raniere lost some followers new women popped up to do his bidding.
And all indications are that the remnants of NXIVM are biding their time waiting for the heat to cool down so they can rebuild the cult.
Thanks for sharing. We were all curious of your opinion. Hot take.
If I were entering a guilty plea to a couple of felonies, I’d probably cry too.
Actaeon, years ago I had dealings with a fellow named Lenny Patrick.
Lenny was a Chicago gangster who admitted to killing six people, actually he was in on the murder of a seventh person.
By the time I had to deal with Lenny he was 80 years old and a convicted felon.
And Lenny Patrick, a stone cold killer, was crying like a baby.
“I don’t want to die in prison.. Boo Hoo Hoo.”
Lenny cried almost as much as Lauren and Allison put together.
Ultimately Lenny died at the age of 92 after being released from prison.
Leonard “Lenny” Patrick (October 6, 1913 – March 1, 2006) was an American mobster, a member of the Chicago Outfit involved in bookmaking and extortion and later a government informant.
Omar writes well. This is a well written article. Thanks Omar.
If not one more witness testified, Raniere’s goose is cooked. Someone more rational would have made a guilty plea, expressed remorse, and decided to have done with it. But he isn’t rational; he’s a narcissist who needs the attention, and he wanted to hurt Salzman one last time and see her reduced to a sobbing, broken, state. This is what he is about. He loves causing people pain. He loves to ‘break’ people. So for him, this trial is just an opportunity to punish his ex-slaves to the maximum degree he can. Unless he is completely insane, he knows he’s going to jail. His lawyers know it. The judge knows it. The jury knows it. As he has done over many years, he’s using lawyers to punish people who have displeased him. I hope he gets a minimum of 30 years jail time, because he is guilty, unrepentant, and still a sadist.
I’m afraid you re quite right Paul.
Paul, you are right. My theory is that once this Hail Mary pass fails and he’s sentenced, he’ll end his life before serving any more time. I think he is planning on it.
I’d hoped it would be different too.
I’d hoped Raniere would have come clean, pleaded guilty, expressed remorse and made amends for his abuses and crimes to everyone he hurt and asked for their forgiveness. That would have been a great step forward for him. He is victim to the thing he cautioned so many others about: PRIDE.
Raniere has long succeeded in getting his way, as unlikely as that seemed, and is apparently a gambler as well. I think there’s a fair chance he thinks that he’s going to beat this somehow, though I agree that he is also relishing the opportunity to continue to try to have his way with his victims in the courtroom.
What if Agnifilo’s real strategy is not to win the case on appeal, but to establish enough grounds so that an appeal will greatly increase his billable hours?
That would normally be a good theory, but Raniere is rapidly running out of money. Money that wasn’t his in the first place, it was from Bronfman.
The cross-examination of Lauren Salzman went on for nearly FIVE HOURS. That was more than enough time for AgniSTEALo to discredit the witness and fulfill VanCrook’s constitutional right to confront witness that are testifying against him.
So, that is why I think that this won’t be grounds for an appeal.
“The cross-examination of Lauren Salzman went on for nearly FIVE HOURS.”
Lauren Salzman ‘s crime wave lasted for nearly TWENTY YEARS.
BOO HOO HOO for Lauren Salzman.
What’s missing in this is the DOJ objecting to the repetitive questioning, by protesting “asked and answered” and the judge upholding/sustaining the objection.
I think the repetition is a way to hypnotize.
The DOJ has seasoned lawyers, they are trained to object when these things occur.