Editor’s Note: On Jan. 5, Suneel Chakravorty posed 44 questions concerning Keith Raniere and his trial in a post entitled My Plan to Show the World What Really Happened to Keith Raniere. The questions were meant to raise potential legal issues to persuade readers that Raniere may not have obtained a fundamentally fair trial.
On January 14th, K.R. Claviger shared his initial thoughts concerning the first 22 questions in Part 1 Claviger: My Initial Thoughts to Suneel’s ’44 Questions’ on Raniere Trial
This is Part 2 where Claviger addresses the second 22 questions posed by Suneel.
23. What probative value did the Camila texts have?
Other than getting each juror in Keith’s case to answer a series of questions about this particular testimony, I don’t know how this question can be answered with any certainty – and even then, I would question the accuracy of the information obtained by such questioning.
If what Suneel and his colleagues are asserting is that the Camila texts were “extraneous evidence”, then I will simply remind them that such evidence is generally admissible to show such things as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake.
Simply put, not all extraneous evidence is inadmissible.
24. How were the Camila texts obtained and should they have been admissible?
Although I have not reviewed all the filings in this case (there are now almost 1,000 of them), my recollection is that this issue was raised – and resolved – prior to the start of the trial. While I am waiting for Suneel and his colleagues to produce their posts, I will go back to see if that’s true.
If the provenance and admissibility of these texts were not previously raised, then the appellate court will not even consider these issues. That’s because appellate courts only look at the record of the case being appealed – and the appellate briefs filed by each side.
25. What does Daniela and Nicole’s participation in a civil lawsuit have to do with the case?
I’m tempted to just write “Absolutely nothing” – and just move on to the next issue. However, in order to prevent Suneel and his colleagues from wasting their time on a non-issue, I do want to point out that it is not at all unusual for victims to testify against alleged perpetrators at a criminal trial – and to then sue that alleged perpetrator after the criminal trial is over.
And while that pattern happens even if the alleged perpetrator is not convicted at the criminal trial (e.g. O.J. Simpson), it is even more common when the defendant is found guilty.
The “standard of proof” for a civil trial is substantially lower than the “standard of proof” for a criminal trial: i.e., “a preponderance of the evidence” versus “beyond a reasonable doubt”. That’s why defendants who are found guilty in a criminal trial are at a significant disadvantage when they are subsequently sued civilly for damages that are related to the crimes of which they were convicted.
26. Can adult women consent at the time and later withdraw their consent to create a crime?
I am somewhat amazed that this question is even being asked but perhaps it’s just poorly worded.
If you mean “Can an adult woman change her mind before a sexual act is consummated?”, the answer is “Yes”.
The basic rule is that “No means No – and Yes means Yes unless the woman changes her mind before the act is consummated”.
But if you mean “Can an adult woman change her mind after a sexual act has been consummated?”, then the answer is “No”.
In this case, the jury heard a great deal of testimony from witnesses who thought they had been victimized by Keith – and obviously deemed that testimony to be credible.
27. Can a female victim be questioned?
This is obviously a rhetorical question.
But I look forward to reviewing whatever “evidence” that Suneel and his colleagues can produce to show that female victims can or cannot be questioned.
28. What were Lauren’s motivations and relationship with the prosecution?
I believe that the facts regarding this matter are simple and straightforward: i.e., Lauren entered into a plea deal that apparently included a provision requiring her to make herself available as a witness for the prosecution – and she fulfilled that obligation.
Only Lauren really knows what her motivation was for entering a plea deal – but I assume that, like most people who accept plea deals, she did not want to risk the vagaries of a trial and, thus, was willing to plead to reduced charges in order to reduce the amount of time she might end up serving in prison (In her case, she pleaded guilty to Racketeering & Racketeering Conspiracy).
I will be interested to see what “evidence” Suneel and his colleagues can produce to document Lauren’s “motivations and relationship with the prosecution”. And I will be even more interested if that evidence proves that there was something untoward about either of those matters.
29. Were some witnesses given deals of immunity?
Insofar as I know, none of the witnesses who testified at Keith’s trial were given any type of assurance that they would not be prosecuted for any of their NXIVM/ESP-related activities. Normally, that’s a question that defense attorneys ask most witnesses who testify.
I have not yet gone back to see if Keith’s attorneys asked every prosecution witness such a question but I am certain they asked that question to Lauren and Mark Vicente.
Such immunity agreements are pretty standard procedure when the alleged crimes involve multiple defendants and/or multiple unindicted co-conspirators.
If all Suneel and his colleagues are going to do is read the trial transcripts to find out which witnesses were given immunity by the prosecution, that should be a relatively easy task. But if they’re going to try and produce evidence to show that the immunity agreements led the witnesses to perjure themselves, I think that’s going to be a very difficult task.
30. Was Keith kidnapped or arrested?
I’ve already addressed this issue in one of my posts concerning Keith’s “Call To Action”.
Nevertheless, if Suneel and his colleagues can produce evidence to show that Keith was not properly apprehended and expelled from Mexico – and subsequently arrested pursuant to an outstanding “Arrest Warrant” in the U.S. – I will certainly consider changing my stance on this matter.
31. Did prosecutors mislead the court to deny Keith bail?
I’m not sure exactly what legal issue Suneel is raising here but I suspect it has something to do with the fact that Keith had legally traveled to Mexico – and that he was allegedly willing to return to the U.S. to face trial.
Depending on what evidence Suneel and his colleague can produce, they might be able to convince me to reconsider whether the denial of pre-trial release for Keith was/was not proper.
Even if they could do that, I’m not sure that will be enough to convince the Second Circuit Court of Appeals that Keith deserves a new trial – and I doubt very much that Keith would be released from prison now even if he were awarded a new trial (A guy facing a 120-year sentence is pretty much a de facto flight risk).
32. Did the judge not properly review the evidence that Keith wasn’t hiding?
Once again, depending on the evidence that they can produce, it’s possible that Suneel and his colleagues will be able to convince me that Keith was not actually hiding in Mexico at the time he was expelled from the country – and transported to the U.S.
And once again, I’m not sure that would be enough for the Second Circuit Court of Appeals to award him a new trial. Even if it did, I doubt very much it would order Judge Garaufis to release Keith on bail prior to his new trial.
33. What impact did Keith not having bail have on his ability to mount a proper defense?
This is an issue that I fully believe in – and one of the reasons why I think our current bail practices need to be substantially reformed. And while it will be difficult, if not impossible, for Suneel and his colleagues to produce evidence to show what would have happened if Keith had been granted pre-trial bail, I think they should be able to find several experts to provide affidavits indicating how onerous a burden pre-trial incarceration is – especially in a place like the Metropolitan Detention Center (MDC) – for a defendant who is awaiting trial.
At some point, I believe this issue will be addressed by an appellate court or a state legislature – and that the number of people who are incarcerated before they go to trial will be greatly reduced. Perhaps Keith’s case is the one that will lead to that type of reform.
By the way, it should be noted that some of the crimes that Keith was facing include a presumption that the defendant not be released before trial. Thus, the burden of proof was on Keith to show why he should be released rather than on the prosecution to show why he shouldn’t be.
34. Did any “victims” in the case have a motive to lie?
This is an issue that really should have been addressed by Keith’s attorneys during his trial and/or at his sentencing hearing.
Trying to bring it up now – and asserting that it warrants Keith getting a new trial – is, in my opinion, a waste of time and effort.
To some extent, every victim of a crime has a motive to lie about the person(s) they believe to be the perpetrator(s). The desire for justice – and/or the desire for revenge – pretty much guarantees that.
What Suneel and his colleagues need to do here is produce evidence to show that one or more of the victims did lie – and that their lie(s) had a direct impact on Keith being found guilty of one or more of the charges on which he was convicted.
That is going to be a difficult task – but I am looking forward to reviewing whatever evidence they can produce to document that this happened.
35. What were Keith’s relationships with the alleged victims?
I have no idea what legal issue this question is related to – and/or how any related evidence might warrant a new trial.
But, as I said with respect to many other issues, I’m looking forward to reviewing whatever evidence Suneel and his colleagues can produce to show that the true nature of Keith’s relationships with the alleged victims is significant enough issue to warrant a new trial.
36. What were Keith’s relationships with the alleged co-conspirators?
I also have no idea what legal issue this question is related to – and/or how any related evidence might warrant a new trial.
But, once again, I’m looking forward to reviewing whatever evidence Suneel and his colleagues can produce to show that the true nature of Keith’s relationships with his alleged co-conspirators is significant enough issue to warrant a new trial.
37. Was Daniela really a captive in the room? What role did her father and mother play?
When I first heard about Daniela’s “imprisonment”, I thought it sounded over-stated. But when I listened to her testimony – and Lauren’s testimony – at Keith’s trial, I finally understood that even though Daniela could have physically left the room on any number of occasions, she was, in fact, emotionally and psychologically imprisoned throughout the time she was there.
I’m looking forward to reviewing whatever evidence Suneel and his colleagues can come up with to demonstrate that Daniela was not really being held captive throughout the almost 2-years she spent in the room.
I’m also looking forward to reviewing whatever evidence they can produce to explain the role that Daniela’s mother and father played in her “captivity” (Crimes such as this can have multiple perpetrators – which means that even if Daniela’s parents were somewhat responsible for her captivity, that does not preclude that Keith was also responsible).
38. What were the elements of Daniela’s so-called imprisonment in the room?
This question would be more important if Keith had been charged with Kidnapping or False Imprisonment – or if either of those were among the 16 alleged predicate acts that were the basis for the Racketeering charge.
But the charged crime in this case was Document Servitude – which does not actually require any imprisonment.
There was testimony that indicated all of Daniela’s identification-related and immigration-related documents had been taken from her shortly before she was ordered to stay in the room (They were not even back to her when she was driven to the U.S./Mexico border). That’s why Keith was found guilty of this crime.
39. Were any potential defense witnesses intimidated by the government?
While Suneel and his colleagues are planning to re-examine the affidavits from Michele Hatchette and Nicki Clyne that were part of Keith’s ill-fated Rule 33 motion for a new trial last October, the reality is that Judge Garaufis has already determined that their claims of being intimidated by prosecutors were not sufficient to warrant a new trial.
Although Judge Garaufis denied the Rule 33 motion solely because it was not filed on a timely basis, he did note that even if he had considered the merits of the motion, it would have failed.
As he noted in his decision: “Because the court finds that Mr. Raniere’s motion was not timely filed, it declines to analyze the merits of the motion. The court notes, however, that even if Mr. Raniere’s motion were timely, it would fail on other grounds, including the fact that the evidence contained in Ms. Hatchette’s and Ms. Clyne’s affidavits is neither material nor exculpatory.
“The fact that these two individuals may have perceived their and others’ participation in DOS, sexual contact with Mr. Raniere, or uncompensated work for Mr. Raniere’s organizations to be voluntary or even beneficial does not undermine the credibility of other witnesses who testified to vastly different experiences and perceptions.
“Mr. Raniere was not convicted of crimes committed against Ms. Hatchette or Ms. Clyne, and the fact that they do not perceive themselves as his victims is therefore of minimal relevance. See United States v. Scarpa, 897 F.2d 63, 70 (2d Cir. 1990) (‘A defendant may not seek to establish his innocence . . . through proof of the absence of criminal acts on specific occasions.’).
“Even assuming, without deciding, that all of the information alleged in Ms. Hatchette and Ms. Clyne’s affidavits is true, the court is far from convinced “that the jury has reached a seriously erroneous result” or that justice was not served by the verdict in Mr. Raniere’s case. Snyder, 740 F. Appendix at 728.”
I look forward to reviewing whatever evidence Suneel and his colleagues can develop with respect to this matter – but, based on Judge Garaufis, ruling, I do not think it is likely going to be enough to warrant a new trial.
40. Were any statements made by the government to the court or to the press incorrect?
Although I have read many of the filings in Keith’s case – and most of the transcripts from his trial – I have not read all the government’s press releases or other statements to the press concerning the case.
I should note, however, that although statements made by the prosecution in the courtroom can be challenged by the defense, statements made outside the courtroom are considered irrelevant.
Thus, I am looking forward to reading whatever “incorrect statements” and “false statements” that Suneel and his colleagues may identify so that I can determine whether they might be sufficient to warrant a new trial.
41. Did any witnesses have a legitimate reason to fear for their lives?
Although I do not recall the prosecution making such claims, I will not be surprised to see evidence that they did so. Thus, I am interested in seeing whatever evidence Suneel and his colleagues can produce regarding those claims – and how those claims may have affected the case.
I’m not quite sure how they will be able to ascertain “the impact of these claims on the case” without talking to the individual members of the jury but I am definitely open to the possibility that one or more of them were influenced by such claims.
42. Did any witness for the prosecution change their story overtime?
It would not surprise me to find out that some of the witnesses for the prosecution did not respond to questions exactly the same way when they were asked some questions multiple times.
The simple reality is that very few people recollect events exactly the same way when they recount an experience multiple times. Sometimes, they add more details, sometimes they leave out details, and sometimes they change details.
Here, however, Suneel and his colleagues are going to produce evidence concerning witnesses who once “…were positive towards NXIVM and Keith [but] now feel the opposite”. It will be interesting to analyze that evidence – and to see if there is a logical explanation for such a change of perspective.
43. What does the case look like when without sensational language and moral judgments?
Depending on how thoroughly they analyze the filings in the case, this could be a Herculean task (There have already been almost 1,000 filings in the case).
In addition, it is also a task that will depend very heavily on personal standards and values: i.e., there is no agreed-upon list of “sensational language” and/or “moral judgments”.
Nevertheless, I look forward to reviewing whatever evidence Suneel and his colleagues produce with respect to this aspect of the case. That is especially true in terms of how they will go about determining how the case might have turned out if all that “sensational language” – and all those “moral judgments” – were removed from the proceedings.
44. What does the case look like when all the genders are reversed?
This is indeed an intriguing question – and one that would be appropriate to ask with regard to just about any criminal trial.
I am very much looking forward to reviewing the evidence that Suneel and his colleagues will produce concerning this aspect of the case.
And I am anxious to see just how broadly they will pursue this analysis: i.e., are they only going to change the genders of some of the people who were involved in the case – or is this going to be a total makeover?
So, there you have my initial thoughts regarding the 44 questions that Suneel and his colleagues will be analyzing – and providing evidence about.
As I said at the opening of this post, although I come into this process with my own biases, opinions, preferences, values, etc. that I have developed over the years because of my own personal experiences, I pledge to try and set those aside as I evaluate the evidence that Suneel and his colleagues provide with respect to those 44 questions – and I expect to be held accountable by Frank Report readers if I fail to do just that.
Just remember what I said at the outset of this series:
“I am not trying to present the “best possible” position for Keith on each issue. Presumably, that’s what he was trying to do in his ‘Call To Action’ — and what Suneel is going to do in providing evidence with respect to the 44 legal issues he has identified regarding Keith’s apprehension, expulsion, arrest, indictment, pre-trial detention, trial, and sentencing.
“The U.S. criminal justice system was not designed to operate in an objective manner. Instead, it was designed to be a fair confrontation between those who believe the defendant is guilty of committing a crime — and those who believe the defendant is innocent.
“I am also trying to take into account the realities of how U.S. criminal justice actually works as opposed to how I think it should work. Thus, for example, even though I believe that pre-trial detention should only be allowed when the defendant is (a) charged with one or more violent crimes, (b) has previously been convicted of one or more violent crimes, or (c) has previously failed to show up for court appearances after being released on bail, I evaluated Keith’s request for pre-trial bail in the context of how the system actually works today.
“My role is not to make Keith’s supporters feel good or bad about how a given legal issue will likely play out. Instead, my role is to explain how and why I think various legal issues will play out in terms of Keith’s quest to get a new trial”.