The Prosecution’s Argument, the Defense Objection and the Judge’s Decision on Using First and/or Last Names for DOS Women at Raniere Trial

During the trial of Keith Alan Raniere, from the first of the trial, there was an argument about using the first names of some of the women of DOS versus using the last and first names of others during the trial.

This issue will undoubtedly be a big part of Raniere’s appeal – that the jury was prejudiced against Raniere by the fact that some DOS women were named fully and others – both witnesses and women who were referred to by the witnesses – had only their first names used.

The argument being that the prosecution got to decide who was a victim and who wasn’t and additionally the very use of a first names only gave the impression that these women were determined by the court to be victims.

From the first day of court – during the testimony of Sylvie – it occurred. Sylvie did not know if she could use some people’s first and last names or not. It turned out that the distinction was fairly simple. Seven of the 8 first line slave masters of DOS – Allison Mack, Lauren Salzman, Rosa Laura Junco, Loreta Garza, Daniela Padilla, Nicki Clyne, and Monica Duran – were referred to by both their first names and last names.

Camilia was to be referred to by her first name only, because she was the sister of one of the alleged victim-witnesses Daniela. [the woman confined to her room for almost two years].

Penza’s argument is that the entire first line were criminals – like Raniere and not victims.

During the first day of trial, it became a little awkward.

AUSA Moira Penza had to give permission to Sylvie, in front of the jury, to use two women’s first and last names – Rosa Laura Junco and Monica Duran.

Raniere’s attorney Marc Agnifilo objected when it happened and then at the end of the first day of the trial, he said he would move for a mistrial.

The following morning [May 8, 2019] he gave his arguments for a mistrial. Penza gave her rebuttal.

Judge Nicholas Garaufis ruled against the mistrial and chose to give jury instructions on the issue.

Let us review the actual proceedings, since it will figure largely in the appeal.

***

The first time it came up was during Sylvie’s testimony.  After being told by Moira Penza that she could use Monica Duran’s last name, Agnifilo objected.

AGNIFILO: Your Honor, before we go on, can we have a sidebar?

THE COURT: All right.

 

The attorneys approached the bench and the sidebar was conducted out of the hearing of the jury.

THE COURT: Sir?

AGNIFILO: So I have objected to this whole “You can use her first name,” “You can’t use her first name” basis. I’m moving for a mistrial. I think what’s happening here is unprincipled. I think it’s destructive. I think it is absolutely going to be leaving the jury wondering why do we use some people’s full names, why do we use some people’s half names, first names.

This is exactly the issue I raised in writing [in a pretrial motion]. I said, in practice, this is going to be very difficult and I think what’s happening here …. I don’t like this procedure. I don’t think it’s fair. I don’t think it’s fair for the government to basically be in this cat-bird seat about how people are referred to at this trial and they give dispensation. “You can say her full name. You can’t say her full name.” There’s been no factually specific finding made as to any specific person and I think this is a violation of due process.

These are the issues I raised in my motion. I think it’s a violation of right to a fair trial and I’m moving for a mistrial and I think we’re playing games with the presumption of innocence and I think we’re impeding on the province of the jury in terms of there’s been no specific finding and we’re being fast and loose, in my opinion, with how we’re making these decisions and I raised all this before the trial started and the way it’s playing out is exactly what I was afraid of and exactly what I warned about and I’m moving for a mistrial.

THE COURT: All right. We will take it up after the jury leaves for the day. Thank you.

***

At the end of the day, after the jury was excused the matter was taken up.

THE COURT: At this point, there was a motion at the sidebar, you can repeat your motion, and then I will deal with the technical aspects of what’s going on here. Go ahead.

AGNIFILO: Your Honor, I’m moving for a mistrial. I’m moving for a mistrial because before the trial started, I strongly objected to the Government’s use of first names, partial names, or nicknames for anybody that the Government deemed to be a victim. I raised this objection for many reasons and every one of the objections I have raised has now played itself out on the very first day of testimony.

Specifically, I was concerned that by using full names for some people and first names for other people we would be unfairly signaling to the jury that in some collective way, which I very much object to, the Court deems and the Government deems that a certain person is a victim and other people are not victims; and at this point in this trial, Mr. Raniere is innocent. There are no victims, and the problem with this procedure is by saying, for instance, you can say Rosa Laura Junco’s name, I don’t get a vote in that.

No one asked me if the witness can say Rosa Laura Junco’s name, and the problem with this procedure is to keep facts from a jury about a person’s actual name, I submit, you have to make specific factual findings for each person that you are going to give a first, partial, nickname to and we have not done that.

And instead, what’s happening is we are going on the fly. The Government is making a decision based on — I have no idea what. “You can say that person’s name, you can’t say that person’s last name,” and I don’t have a vote in this?

It’s being condoned by the Court in the presence of the jury, and the jury is now set with a very clear signal that in the Court’s view, certain people are victims of crimes and in the Court’s view, some people are not victims of crimes, and that is — there’s no remedy at this point. This is an objection I raised before the trial started, and here we are a few hours into the trial and exactly the problem that I raised in the papers has come to pass, so I’m moving for a mistrial.

THE COURT: I see. Can I hear from the Government, please?

PENZA: Yes, Your Honor.  First of all, to the extent there’s been any prejudice, it can be easily cured with an instruction at this point. Mr. Agnifilo didn’t object until the end of the day today. He could have objected earlier on. Obviously, he didn’t think that the concern was so great earlier on in the day. That being said, the Government wants a better process….  first of all, Mr. Agnifilo knows exactly the line that the Government is drawing and the Government is not ….holding back the last names of first line DOS slaves who are directly under the defendant…  Mr. Agnifilo knows that, so the fact —

AGNIFILO: That’s not —

THE COURT: Just sit down, I have heard from you. Let me hear and you can respond.

AGNIFILO: All right. Fair enough.

PENZA: And so the Government … wishes to submit a cheat sheet, and we are happy to submit it to the Court. However we want this to be done, but these are names that are familiar to all of these participants and it is crucial that we protect the privacy of the people who were indeed victims.

And, yes, there is a presumption of innocence, but these people are indeed victims right now. Co-defendants have pleaded guilty to crimes involving these individuals, and so to act as if their privacy should not be protected is unconscionable, in my view, and so — courts have done this in cases that are far less extreme. Here the facts are truly horrific and humiliating and so we need to protect them.

THE COURT: All right. But the question is how best to do that? I think that it is awkward, at best, for you to be saying, well, you can mention this last name or that last name, but you can’t mention some other last name, and I think that what we need to do –  and you can propose a solution in writing to the Court –  is for those witnesses who you believe are the victims and you’ve provided discovery to the defense regarding their victimization, as alleged…  that they be, if they’re testifying, be provided with the names of people whose names they can only state by their first names, and otherwise everybody can be mentioned by their full names, and if the defense has a problem with that list, then we will go over that and resolve it.

PENZA: Fair enough. Agreed.

THE COURT: It’s a limited group of people. I don’t know how limited, but you will let the Court know. Remember, the Court …  has not received the discovery in this case. The discovery has been exchanged between …  the Government to the defense as it turns out. There’s been no reciprocal discovery, as I understand it.

PENZA: That’s correct, Your Honor.

THE COURT: But that’s not the point. The point is that it’s, at best, an awkward situation for you to say to a witness, “Oh, you can mention that last name and you can’t” –and implying that there are certain last names you can’t mention, but I think it would be useful and appropriate for us to have a better approach to this and then we’ll see if we need to do this all over again [retrial] in September or October and November, which is another possibility, of course, since a motion has been made to do just that, so I hope your fall is not busy.

AGNIFILO: A fair trial is more important than my schedule.

THE COURT: A fair trial is the most important thing and that’s what we’re going to have here.

AGNIFILO: I believe that’s true. And, Your Honor, here’s the problem: The problem is the time to do this was before the trial started, that’s why I objected. I objected to this procedure for the exact reasons that have panned out today and —

THE COURT: No. What you objected to was the use –correct me if I’m wrong — the use of only first names; isn’t that right?

AGNIFILO: I objected to the use of —

THE COURT: For the people who are allegedly victims, that was your objection.

AGNIFILO: I think that in this case people should have their names. …  no one has pled to sex trafficking, so the Government’s point that somehow these people are victims through someone else’s guilty plea is not actually true because nobody has pled guilty to sex trafficking, so there are no sex victims in this case unless we are presuming that Mr. Raniere is guilty and we are not presuming that he’s guilty and the problem with this procedure is we have already done it. We will go through the transcript, but on at least two occasions, Ms. Penza has told —

THE COURT: Stop. You sat in silence through 90 percent of this. You didn’t raise this the first time she made that —

AGNIFILO: I raised this before the trial started.

THE COURT: You didn’t raise it here in this courtroom today, that’s what I’m saying.

AGNIFILO: I understand.

THE COURT: You want to backtrack now and say you’re going to count the times. That doesn’t work. Listen, I didn’t stop you when you compared your client to Winston Churchill [actually Agnifilo compared himself to Churchill- in his opening statement], so don’t tell me about excess, okay? I saw that movie three times, really.

PENZA: We’ll submit something. [a motion for mistrial].

THE COURT: By tomorrow morning.

PENZA: Yes, Your Honor.

THE COURT: Anything else?

AGNIFILO: Nothing from us.

PENZA: No, Your Honor.

THE COURT: Be here at nine o’clock tomorrow morning, we’ll discuss it more.

PENZA: Yes, Your Honor.

The matter was adjourned to May 8, 2019.

At that time, Agnifilo spoke first:

AGNIFILO: Your Honor, I most respectfully object to the procedure outlined by the Government [of making a list or cheat sheet for witnesses of whose names they can use only their first names]

I’m concerned most of all by the distinctions that the Government has drawn within the broader category of people who are in DOS. There are people whose nicknames or abbreviations or first names are sometimes used and then the Government has a procedure here where sometimes people’s full names are used and the distinction that the Government draws is whether they’re first line DOS members, and my concern with this procedure is this terminology is only in existence because it’s consistent with the Government’s theory of sex trafficking and for no other reason.

… I do not follow, I do not subscribe, I do not agree with the Government’s theory of sex trafficking, and I do not agree to use the terminologies that have been outlined by the Government that are created solely because they reflect the Government’s theory of sex trafficking. I don’t want this jury thinking that I somehow agreed to this process and I agree that certain first line DOS members are not getting protection and other people are.

The problem that we have now — and I don’t know how we get around it and I’m trying to think of solutions — is I am being forced to adopt terminology that is only in existence because of the Government’s theory of the case. It’s not my theory of the case, it’s repugnant to my theory of the case, and so with utmost respect, Your Honor, I disagree with this procedure.

THE COURT: All right. Ms. Penza?

PENZA: Yes, Your Honor, so the Government –this idea that the first line is only consistent with sex trafficking is just false. The idea, Your Honor, is that everyone in the first line — the Government believes that every member of the first line was a coconspirator.

There is no question; there’s no distinction about that. There is one member of the first line who was also the victim of child pornography [Camilla] and sexual exploitation by the defendant when she was 15, but more importantly revealing her last name would expose — would necessarily identify the last name of her sister who is a victim of forced labor.

Another defendant [Lauren Salzman] has already pleaded guilty to the exact charges related to forced labor of that second sister [Daniela], so that’s the only reason we are seeking to protect the identity of one of the first line DOS slaves.

Everyone else the Government considers a coconspirator. These were people who were — when they joined DOS, they knew that the defendant was their grandmaster and then they conspired with the defendant to conceal his identity and to recruit new people in to get naked pictures; to get property; and in some situations, to get woman to have sex with the defendant.

So the Government views those people as coconspirators and that is the distinction that the Government is drawing.

I think that is — that’s really it. I don’t really think there’s much other dispute. The Government has conceded that there are a couple people where the Government knows that using their last name is — there’s no practical way to not use their last name and has not sought to protect those people because we don’t think there’s a way to do it, but other than that, that’s the distinctions that the Government has drawn and they are consistent with everything the Government has presented thus far and they are consistent with what has already happened in this case thus far.

AGNIFILO: My concern, Judge, isn’t of consistency. It’s that the Government’s theory of sex trafficking is being imposed on me. It’s being imposed on me in the terminology I’m being asked — I’m being forced, if the Government gets its motion granted, to use and it’s not consistent with my theory, so as a result —

THE COURT: You can dispute that these individuals are coconspirators or that there’s a conspiracy at all —

AGNIFILO: But Judge —

THE COURT: — and the Government is not — except for that one exception — the Government is not proposing or indicating that these people are victims whose full names are being provided.

PENZA: That’s correct, Your Honor.

AGNIFILO: The jury will figure this out. The jury will absolutely — they probably figured it out on the first day that certain people are being called by their first names and certain people who seem to be involved in DOS are being called by their full names. That’s not going to be lost on the jury.

THE COURT: Well, I think the jury needs to have an instruction that the individuals who are only being identified by their first names are alleged to be victims — they’re alleged to be victims by the Government, and that way you can take issue with it, if you so desire, and you will be able to cross-examine the witnesses regarding whatever it is that they have — the witnesses have stated on their direct testimony.

AGNIFILO: But — but —

THE COURT: The purpose of the limitation is to — I will tell the jury — I would expect to tell the jury — is that this will protect the alleged victims from having their privacy invaded by the media.

[There was an interruption in the proceedings for about a moment and then judge resumed]

THE COURT: All right.

AGNIFILO: Judge, can I just —

THE COURT: Do you have something else? Go ahead.

AGNIFILO: I do.

THE COURT: You can make your record.

AGNIFILO: I have to.

THE COURT: Well, you have.

AGNIFILO: I have…  the problem is in the distinctions….  just so the record is clear, I object to this whole procedure, and I have objected before the trial, but I think it makes it worse — I think it makes it worse if we make distinctions within DOS.

THE COURT: The problem with this case is that it is extremely complex. It involves people who may be innocent victims of a series of crimes. That’s the Government’s theory. I’m not ascribing to it, but that’s the Government’s theory. There are many people on this list. This isn’t a small list…. this is a big list, and you know who these people are and your client knows who these people are, so this list is not some secret from the defense, I assume. Is that right?

AGNIFILO: No. We got the list 15 minutes ago.

THE COURT: No, that’s not what I’m asking. Does your client know who these people are?

AGNIFILO: We know who everybody on this list is.

THE COURT: Right.

AGNIFILO: But there’s been no — there’s been no inkling of anything untoward. I mean, I don’t know what — I’m trying to understand if the Court has a concern about that. There’s been no suggestion that my client has done anything in regard to anyone, and so from what I can —

THE COURT: I don’t know why I’m here on that case.

AGNIFILO: Sorry, Judge?

THE COURT: I don’t know why I’m here if your client is not alleged to have done anything to anyone. I don’t understand that.

AGNIFILO: To witnesses in the capacity of witnesses.

THE COURT: That’s not the point. You know that’s not the point.

AGNIFILO: That’s the point I’m trying to make.

THE COURT: The point is — what is the point?

AGNIFILO: The point is —

THE COURT: No, no, I’m not asking you, I’m asking the Government. It’s their request.

PENZA: Yes, Your Honor, and as we’ve laid out in our motions in limine, which Your Honor already granted, here there are extreme privacy concerns related to both the witnesses and also innocent third parties, and this is — the nature of this case is so extreme — the nude photographs, the collateral — this is the exact type of case. There are far less salacious cases where …  witnesses’ identities have been protected, and so this is the heartland of the type of case where this should be done. The defendant should not get to further humiliate these people. There is no point. He knows exactly who they are; he knows everything about them. It is not limiting cross-examination, nothing.

AGNIFILO: Judge, maybe — the concern I have is at this point, since I lost the motion, is the distinctions that I’m going to have to say to a witness: “Isn’t it true you’re in a room with this person, first/last name; this person, first/last name; and this person, first name,” and the jury is going to think, “Why did the defense attorney do that?” and my concern is that the jury is going to think somehow I have bought in to this theory that that’s no longer a theory because, quite frankly, the Court has accepted it, of sex trafficking that the Government is propounding.

It’s my position nobody was sex trafficked. That’s my position. That’s going to be my argument. That was my argument in the opening, that’s going to be my argument in closing. So then why, in the eyes of the jury, am I going to get up there and say this person’s full name, this person’s full name, this persons first name?

We’re supposed to explain the Government’s theory? This is why Mr. Agnifilo did that? I… want to be clear: I don’t want to do it. I’m only going to do it if Your Honor forces me to do it, if you order me to do it; and if you order me to do it, I will do it. But if you order me to do it, I am going to ask you to tell the jury that you have ordered me to do this because I don’t want the jury thinking that I’m doing this because this is my theory, that this is my idea, because it’s not my idea.

PENZA: I think Mr. Agnifilo has a fundamental misunderstanding of the point of this. Obviously the Government believes that the defendant engaged in sex trafficking. There’s no doubt about that, but even if sex trafficking were not charged here, the Government would be seeking these same protections for these people.

These are victims of wire fraud and extortion that related to naked photographs that related to their deepest darkest secrets, lies that the Government and his coconspirators had them tell about their families, about other loved ones and so that is what this instruction is about, and so, Your Honor, that’s the Government’s position, but I think Mr. Agnifilo is hanging his hat on a sex trafficking point and that is not the point.

The forced labor charges in this case, Your Honor, deal in part deal with the sex and with the taking of naked photographs, so the sex trafficking is just one piece of this case and why the victims’ privacy needs to be protected.

AGNIFILO: Your Honor, I think we are in unchartered ground. There’s no Circuit precedent on any of this, and I don’t think there are any like cases, and one of the concerns that I tried to bring up is that it’s unwieldy in this particular case because of all the people, it’s one of the aspects of the motion we filed, and I think it’s a lot for the Court to have to deal with, quite frankly, and I know the Court is going to try and do the best it can with the situation, but I don’t think it’s tenable and — I don’t ask for mistrials easily, I have probably asked for four in my entire career, I don’t see a way out of this problem.

(Pause.)

THE COURT: All right, I’m going to deny the defendant’s motion for a mistrial. Any issues caused by a witness referring to certain individuals by their first name only and by asking the Government if they may use last names of certain other individuals can be cured by a jury instruction, which I will give.

Going forward, the Government shall provide the defendant and each witness, including the current witness [Sylvie], with a list of the individuals whose identity should be protected from the public and the press, that way each witness can refer to the list rather than asking the Government whether a particular individual’s identity is protected. You don’t have a proposed jury instruction.

PENZA: Not yet, Your Honor.

THE COURT: I have one. To the jurors: You may have noticed during yesterday’s testimony that the witness used first names of certain individuals. That is because the names of certain alleged victims are being withheld from the public and the press to protect the privacy of those individuals. I have therefore instructed the parties to refer to those individuals by their first names only. However, those full names are known to the Government, the defendant, and to the Court.

You may also have noticed that the witness was asking the Government whether she should say the last names of certain individuals. Going forward, the witnesses will receive a list of the individuals whose last names are to be protected to which they may refer while testifying. Anything else you want me to put in there?

PENZA: Not from the Government Your Honor.

THE COURT: You object?

AGNIFILO: I do, Judge.

THE COURT: Your objection is noted.  Also, I’m going to direct that the parties shall not make any speaking objections. If the basis for an objection is not apparent, the parties may request a sidebar.

AGNIFILO: Very good. Thank you, Judge.

THE COURT: Okay, what else?

PENZA: Nothing else from the Government, but we would just ask for five minutes to make sure that the list is correct for the current witness.

THE COURT: All right, we’ll take a five-minute break.

PENZA: Thank you.

(Defendant exits the courtroom at 9:29 a.m.)

(A recess in the proceedings was taken.)

THE COURT: Please be seated.

(Defendant enters the courtroom at 9:41 a.m.)

THE COURT: All right, there’s a question?

PENZA: Yes, Your Honor. I have not spoken to the witness since ….  her direct testimony yesterday and so I haven’t explained this procedure to her in terms of having a list in front of her, so I was hoping that … the Court would grant me a minute to just explain that to her, unless the Court wishes us to do it on the record in front of the jury, but I wasn’t sure whether Mr. Agnifilo would have an objection to that.

AGNIFILO: I would rather not do it in front of the jury. I don’t want to do it in front of the jury.

THE COURT: All right, either do I. Why don’t you take a moment to advise the witness of the procedure that’s going to be followed and then we’ll resume with her examination which you said is about another hour?

PENZA: Hour, hour and a half [it wound up being about four or 5 five more hours, as I recall].

THE COURT: All right. Well, when you get close to the end, let me know so we can have a discussion.

PENZA: Yes, Your Honor. I think we may want to have that discussion a little bit sooner.

THE COURT: Well, whenever you are ready for the discussion, I’m sure the defense is ready for the discussion and so am I, okay?

PENZA: Thank you.

THE COURT: All right, we’ll take a moment. Thank you.

(A recess in the proceedings was taken.)

THE COURT: All right, you may be seated. Are we ready for the jury?

PENZA: Yes, Your Honor. We have the list in front of the witness’s chair and we showed it to the defense.

THE COURT: All right. Let’s get started. Please bring in the jury. And you should make that list an exhibit —

PENZA: Yes, Your Honor.

THE COURT: — a Government exhibit for the record. Just give it a number.

PENZA: Sure.

(Jury enters.)

THE COURT: Please be seated, everyone. Good morning, members of the jury.

THE JURY: Good morning.

THE COURT: First of all, let me apologize for getting started a little late, but we were very busy with certain issues that needed to be dealt with and now we can go forward, but before we resume with the current witness, let me just give you an instruction.

Members of the jury, you may have noticed during yesterday’s testimony that the witness only used the first names of certain individuals. That is because the names of certain alleged victims are being withheld from the public and the press to protect the privacy of those individuals. I have, therefore, instructed the parties to refer to those individuals by their first names only; however, their full names and identities are known to the Government, to the defense, and to the Court.

I remind you that the defendant has pleaded not guilty to all the charges and is presumed innocent throughout the trial. You shall not make any inferences as to the defendant’s guilt or non-guilt from the fact that certain last names are being withheld from you and the public.

Also, you may have noticed that the witness was asking the Government whether she should say the last names of certain individuals. Going forward, the witnesses will receive a list of the individuals whose last names are protected to which the witnesses may refer by using first names only while testifying.

So, having said that, we’ll continue. The witness may retake the witness stand.

************End**************

So this is how it was handled by Judge Garaufis.

All in all, it seems the judge seemed to do his best under the curious and novel circumstances. He probably never had a case where the defendant branded and blackmailed women before and where dozens of women entered a sorority under false pretenses etc and were allegedly exploited in humiliating and devastating ways.

How far use of first names for some and last names for other this will go on appeal is not known.

There will be other issues in the appeal, such as the alleged perjury of two witnesses, Daniela and Nicole, the cutting short of Agnifilo’s cross examination of Lauren Salzman and undoubtedly a spate of other things.

Still, my best guess is Raniere will not win on appeal.

He will be sentenced, most likely in June, and may get a life sentence. The very least he can get is 15 years [for sex trafficking]. My guess is he gets 25 years. [I wavered on this one – my second guess is 30 years].

Since Raniere will be 60 in August, even a 25 year sentence is all but tantamount to a death sentence. [He could get 15 percent off for good behavior and he already has 2 years of time served – meaning if he got 25 years – he could be out in about 19 years. He would then be almost 79.

If he gets 30 years, he could serve 23.5 years and get out when he is almost 83.

If he lives that long in prison.

In short the man will not likely ever be free to roam about as the beast of Clifton Park, preying on all kinds of women – first and last names or first names only.

And whether we use first names or first and last names -I suspect most of the women would not have descended into the pits of his self made hell had this devil not gotten a hold of them.