Rosales: Judge’s Decision to End Lauren’s Cross Examination Will Not Be Sufficient Grounds for Retrial on Appeal

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.

Frank Parlato