The Dirty Conflict of Federal Appeals: Prosecutors Defend Judges They Try Cases Before

I realized it when I listened to oral arguments for the US Court of Appeals for the 2nd Circuit. There is an inherent conflict.
 
Attorney Joseph Tully appeared for Keith Raniere. Assistant US Attorney Tanya Hajjar represented Judge Nicholas G. Garaufis.
 
Of course, I understand Hajjar represents the Department of Justice. But she was defending Judge Garaufis. 
 
In the appellate court, the prosecution defends the judge.  They are his unpaid lawyers. The same lawyers that practice before the judge defend him on appeals. It must be challenging for a judge not to favor the prosecution.
Keith Raniere was a most unappealing defendant.
 

Raniere Case Cross-Exam

During the trial of Keith Raniere, Judge Garaufis cut short Lauren Salzman’s cross-examination. The judge shouted, “You’re done” at Marc Agnifilo, Raniere’s attorney.
 
After stopping the cross-examination, he told Agnifilo he could appeal if he didn’t like it.
 
In court, that day was AUSA Tanya Hajjar calling the judge, “your honor.”
 
When the judge said, “go appeal my decision,” Hajjar was there – looking for his favor – and ready to return it – as she did in the appeal.
 

Human Nature

Judge Garaufis stopped the cross-examination of the weeping Salzman, and he said, “I’m a human first and a judge second.”
 
He might as well have said to Agnifilo, “My lawyers are here, and should you appeal, they will be there in the appellate court to defend me.”
 
And sure enough, Hajjar was in the appellate court three years later. She argued Judge Garaufis’ decision to cut off cross-examination was most excellent.
 
A trial judge is not supposed to favor the prosecution or the defense. But it is only human to favor those who help you.
 

Bronfman Appeal

Clare Webb Bronfman, Seagram’s heiress, convicted felon.

 

In the case of Clare Bronfman, the prosecutors wanted a five-year sentence. Bronfman’s lawyers wanted probation.
 
Judge Garaufis went beyond what the prosecution asked. He gave Bronfman almost seven years.
 
So now comes the appeal. Bronfman’s lawyers said Judge Garaufis made an egregious mistake. They cited reasons from procedural to outright intemperance. A bias – because she’s wealthy.
 
If the defense wins, it will make headlines. The media will report the 2nd Circuit overturned her sentence. ‘Wealth Is a Bad Thing for Hanging Judge Garaufis.’
 
And guess who’s representing Garaufis’ honor? The prosecution argued his decision to sentence her longer than what they asked.
How can a judge not love the prosecution?
 

Better Be Fair to Me

And how much effort the prosecution puts into defending a judge might just be up to the old “quid pro quo.” 
In the case of Clare Bronfman, the prosecution thought five years was good. The judge made it six years and nine months.
 
When it came time to appeal, the prosecution didn’t say, “your honors, we’re sorry. We don’t know why Judge Garaufis decided this way. We said 60 months. He came up with 81 months. Sixty months is fair.”
 
No. Now, 81 months is fair. 
Lauren Salzman in Court
A courtroom sketch shows Lauren Salzman on the stand. Keith Raniere takes notes in the foreground.
Consider a scenario where you – a typical Brooklyn guy – decide on a dispute. Let’s say it’s between your friend who defends you, and an ass who attacks you if you don’t decide his way.
 
You have to make it look like you’re being fair. But who are you inclined to favor? Who are you most likely to give the edge?  The guy who protects you? Or the guy trying to embarrass you?

Obviously

A judge must calculate the chance of an appeal on every decision he makes. He might desire to be fair. He might be afraid of an appeal and not go too far or be too obvious. But wouldn’t you tend to favor your lawyer on every close call?
 

Editor’s note:

 
One might argue that defense lawyers defend the judge when the prosecution appeals. This is rare. Why?
 
Because the prosecution cannot appeal an acquittal. The prosecution will also vary rarely appeal a judge’s sentence. The only time a prosecutor appeals is when the judge makes a directed verdict. Or some procedural ruling.
 
The prosecution and judge work together and depend on each other, so this does not happen much. In criminal cases, nine times out of 10, the defense seeks to prove the judge wrong. The executive branch combines with the judiciary against the citizen.
 
What’s a solution? To have lawyers unconnected to the DOJ represent the judiciary on appeals. 
 

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Frank Parlato

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  • All this says to me, Frank, is you’ve lost the plot. From where I stand, the sentence she got was on the light side. Unlike the others, she showed no remorse. Rather than ‘willful blindness,’ she knew a lot more than what she let on to. Face it, Frank, you’re just another deadender!!

  • Judge Garaufi’s decision to settle on 81 months for Clare Bronfman’s sentence is within his own discretion and is set forth in his sentencing memorandum. He had the right to go beyond the sentence and it certainly will not be overturned by the Court of Appeals because the sentence has no legal errors, it will stand. The Court of Appeals will not challenge the judicial independence of Judge Garaufis, that would be bad for the judiciary in any case.

  • We must believe that the judicial system is fair, good and noble. That is why articles like this are dangerous and improper for it undermines faith in the judiciary. We must believe in an independent judiciary or there isn’t any reason to have one. Like other countries that have no independent judiciary, ours would be under the executive branch.

    Please do not write any more columns like this.

  • If you were on a jury and the prosecutor asked you to convict someone, would you do it? If the defense lawyer told you to acquit, would you do it?

    The answer to both of these questions is probably no. Most people are inclined to favor those who support them, and the legal system should be impartial and unbiased.

    So, if you were on a jury for a criminal case, it would be essential that you fully consider all evidence presented by both sides before making your decision. And if there was any indication that you would be unfairly swayed by one party or the other, it would likely violate your duty as a juror and affect the outcome of the trial.

    That is why it is so important to have an impartial system of justice, and one that protects the rights of all involved. Without this, there can be no trust in the legal system, and it risks becoming just another tool for political or financial gain.

    This is why it is so important for judges in criminal cases to remain impartial and unbiased at all times. They must consider all evidence presented by both sides without bias or favoritism, to ensure that the outcome of the trial is fair and just.

    Otherwise, it may risk undermining the trust in our legal system as a whole.

  • It’s better to remove any hint of bias by appointing special lawyers to appeal decisions made by the prosecution or defense. Caesar’s wife should be above suspicion.

  • Ultimately, the prosecution’s relationship with a judge can influence his or her rulings, often leading to a bias in favor of the prosecution. This type of relationship between the two can often lead to an unfair balance of power in the courtroom.

  • The problem would go away if judges were more objective and honest. It seems that they rarely are.

  • Kevin Sorbo is an actor who played “Hercules” on TV

    Kevin Sorbo
    @ksorbs
    ·
    22h
    Abortion is murder. You had sex, what did you expect? A flatscreen tv?
    Kevin Sorbo
    @ksorbs
    ·
    May 3
    So am I allowed comment on Roe V Wade or do I have to identify as a woman first before I speak?

    https://twitter.com/ksorbs

    There is a name for a Supreme Court Clerk that is being bandied about as the leaker of the abortion opinion written by Alito.
    Google around and you will find it.

    And the Democrats, led by Adam Schiff, are pushing for a court packing scheme to turn the Supreme Court into a Marxist arm of the Democrat party.

    • Hey Shadow, why don’t you ask Nicki which side of the fence she’s on? She must be the only person in the country who’s not on any side. And you know why that is!

    • And Louisiana wants to ban IUD’s and charge a woman with murder if she looks to this as a form of contraception.

  • Huh? The prosecution doesn’t defend the judge. They defend the points raised by the defense to attest that judicial procedure was adhered to by members of the justice department. Whether that is members of Hajjar’s own team or the judge depends upon the point brought up and the court record. And that is what she did when she answered the point brought up concerning the stoppage of the cross examination — she referred to the court record about what the judge said.

    This article is a reach.

    • So you don’t think that having lawyers in your courtroom who will defend your every decision is not a slight little bonding for prosecutors and judges?

  • The mere fact that judges are telling attorneys they can appeal if they don’t like it – an option already known – is the red flag.

    My experience is when a judge mentions an appeal, he/she knows what he is doing is dead wrong, and is basically saying – fuck off, I’m doing it anyway.

    You can appeal, but the damage is done and it’ll take money, months or years to be heard.

    It’ll go in my favor anyway – as FR just pointed out the inherent bias in the system.

  • News flash: attorneys argue the case of whoever hires them.

    This is what professionals do. It’s not dirty or mercenary or unprincipled. A surgeon will make every effort to save the life of the gunman who got shot while shooting up a McDonalds. Just like he’d do for one of the victims.

    It’s not personal.

    Justice Department attorneys represent the Federal Government in court. Hajjar isn’t representing Judge Garaufis, she’s representing the Court.

    Read the transcripts. Notice all the references to “the court”. It’s an abstract entity. It’s not personal.

    Hajjar defended the decision of the court. That’s her job. To suggest she’s sucking up to Judge Garaufis is laughable.

    The analogy of the “typical Brooklyn guy” settling a dispute is even more laughable. I suppose by “typical Brooklyn guy” you mean some Neanderthal in a pit-stained tee shirt chomping a cigar. His mode of settling disputes is to holler “Fuck you!” while his estimable disputant yells “No, fuck YOU!”

    Well, that’s not how courts operate. (It’s also not how I operate). As difficult as it may be for some to believe, it is possible to have rational debate according to objective consistent impersonal principles. The world is not all “reward your friends, punish your enemies”.

    The latter is how the Raniere camp sees it. Clyne and Chakravorty and, increasingly the Frank Report, all view the government and the court system this way. The judge, the FBI, the DOJ all out to “get” Raniere.

    I read some of Clyne’s Tweets and I realized the Frank Report and she take the exact same position on the Raniere prosecution and conviction.

    The exact same position.

    And she’s batshit crazy.

    • I have personal experience of how the FBI and DOJ connive. You may want to believe in it – as a kind of magical thinking – of their utmost integrity, but I know differently.

      I am not exonerating Raniere or Bronfman. They’re the ones who got the DOJ to go after me. I also understand human nature. Power corrupts, and the lofty words of justice, fidelity, bravery, integrity, or that they serve the lady justice is a mockery. It’s Orwellian to call it the Department of Justice. That’s my take, and I think Raniere is a scoundrel.

      • You have had bad experiences with the FBI. I sympathize. Cops can be assholes. At the same time, this seems to have made your objectivity suspect.

        That you’ve had a bad experience with the justice system does not prove the system is rotten to the core.

        “I am not exonerating Raniere”

        That’s what Chakravorty and Clyne say. Chakravorty is in favor of investigating the question of Raniere’s guilt. Clyne has been Tweeting about how defending Raniere’s right to a fair trial does not mean Raniere is innocent. In fact she rarely mentions Raniere at all.

        I think it’s fair to say that the Frank Report is in accord with their positions on this. You all 3 believe the FBI fabricated evidence, that Agent Booth lied about the EXIF files, that Judge Garaufis was prejudiced and unfair, and the DOJ is corrupt. You all say that the question of Raniere’s guilt is an entirely separate question from FBI tampering in the case, although Chakravorty and Clyne say Raniere’s conviction should be tossed and he should get a new trial, while the FR does them one better and says Raniere’s conviction should be vacated and he should go free.

        To sum up, the FR says if the FBI tampered, Raniere must walk. And it says the FBI tampered.

        That’s exonerating Raniere.

        It’s also fully in accord with the Nxian dead-enders agenda. Their rhetoric. And their pretzel logic.

        Pretzel logic? This: You all 3 claim the FBI is a corrupt organization, rotten to the core, serving the cause of injustice. Yet you all 3 hold up career FBI man Kiper as a brilliant, honest expert. How is it that this shining example of rectitude spent 20 years in such a rotten organization? Running entire divisions. Without once raising a peep, for well over a decade, until he was demoted with a pay cut, then he went screaming off to his political contacts in Congress to raise holy Hell?

        Kiper’s long distinguished service with the FBI proves his trustworthiness and expertise, insist Chakravorty Clyne and the FR.

        The FBI is a corrupt organization expert only in dishonesty, insist Chakravorty Clyne and the FR.

        Pretzel logic.

        Sadly, I must conclude that the FR is working in league with the Nxian dead-enders to free Raniere. In some misguided idea that this serves the greater good. Some imagined government crimes outweigh all the proven sex trafficking, extortion, branding, slavery, fraud, and racketeering.

        It does not serve the greater good, and the accusations of FBI malfeasance in the Raniere case remain completely unsubstantiated.

        After months and months, still no proof of FBI tampering.

        That’s the one salient fact here. No proof. That’s what cuts through all the verbiage, all the speculation, all the cynical suppositions about “how the world really works”, all the Q-Anon level conspiracy theories.

        • Aristotle – I don’t agree with your logic. As soon as I get the chance, I’ll explain. In a word, I don’t know if the FBI tampered. If they did, that is far more important than if a guilty man walks free. But he is unlikely to walk free even if the FBI tampered. I have one goal here – to find out if the FBI tampered.

          More later

        • “After months and months, still no proof of FBI tampering.

          That’s the one salient fact here. No proof. That’s what cuts through all the verbiage, all the speculation, all the cynical suppositions about “how the world really works”, all the Q-Anon level conspiracy theories.”

          The main way ideologues like “Aristotle’s Sausage” operate is by blocking out facts which don’t support their ideology. They don’t see these facts because the facts which question their ideology make them uncomfortable.

          Suneel Chakravorty, Eduardo Asunsolo, Nicki Clyne, and Marc Elliot continually present facts which ideologues like Aristotle’s Sausage ignore.

          Aristotle’s Sausage clings tight to his worldview – how he makes sense of the world – and he simply can’t tolerate facts that challenge it.

          So he denies these facts exist.

          Proof of this is that “Aristotle’s Sausage” never mentions a fact that any of those he disagrees with have presented. He doesn’t present one fact they have written about and dispute it with proof.

          He simply can’t handle it.

          It’s why Aristotle’s Sausage is a crank, and not a serious thinker who deserves the name “Aristotle” anywhere near him.

          Alanzo

      • Nice to know that, Frank. What’s perhaps more dangerous is to constantly undermine federal authorities in the way that you do. There’s no such thing as a perfect society, but to constantly undermine its institutions risks undermining society itself. Is that your agenda?

        • LOL!

          Undermining judicial corruption is supportive of the institutions in our society.

          Sitting by and letting it happen, and criticizing those expose it, is subversive to law and order.

          Alanzo

    • By the way, the reference to a typical Brooklyn guy is from something Judge Garaufis said at sentencing of Raniere. He said, “I’m just a guy from Brooklyn ” and then proceeded to explain how despicable it was [and I agree] that Keith did not pay any support for his eldest son.

  • Frank, you are now twisting reality to suit a new agenda of yours. Some of us can see through your veil. You’ve expended too little effort on the draperies. The panties are the “see through” type!

    What the incarcerated did is not shocking, only the judge is. Wow!! Soon the 3 judges of the Appellate Court will become scoundrels as well…

    Some people have a lot of imagination and free time.

  • I do not understand this post, at all.

    No matter how the verdict goes, one side will be unhappy and may appeal. And the other side will defend the verdict. Who “protects” the judge and who “embarrasses” him depends entirely on who won the case. Whoever won will “defend the judge” on appeal. There is no reason – none – for a judge to play favorite on this basis.

    Here, the defendant (Raniere) filed the appeal, meaning that he is contending that the judge made mistakes. The government disagrees. This is not “defending the judge” or acting as the judge’s lawyer. Its defending the verdict. If the government doesn’t defend the verdict, then the defendant wins the appeal by default. There is nothing inappropriate about it.

    Frank is suggesting that the judge will go easy on the government because he wants the government to protect him in the appellate court. Protect him from what? The appeal cannot harm the judge in any way.

    The worst thing that could happen, from the judge’s perspective, is that the defendant wins the appeal and gets a new trial. The post seems to acknowledge this, by pointing out that the judge must weigh the “chance of appeal.” How does a judge protect against that? By showing favor to the prosecution, so that the prosecution will defend his unfairness well on appeal? That makes no sense. The best way to avoid an appeal is to be fair and abide by the law, not be biased.

    • One might argue that defense lawyers defend the judge when the prosecution appeals. This is rare. Why?

      Because the prosecution cannot appeal an acquittal. The prosecution will also vary rarely appeal a judge’s sentence. The only time a prosecutor appeals is when the judge makes a directed verdict. Or some procedural ruling. 

      The prosecution and judge work together and depend on each other, so this does not happen much. In criminal cases, nine times out of 10, the defense seeks to prove the judge wrong. The executive branch combines with the judiciary against the citizen. 

      What’s a solution? To have lawyers unconnected to the DOJ represent the judiciary on appeals. 

        • Maybe they might need fewer prosecutors at the DOJ if they did not have to handle appeals all the time. So the net cost might be the same. And the number of innocent people in prison might be a little less which would save taxpayers money too.

          • The number of appeals that are filed have no impact on the number of appeals that are successful. It remains the case that the vast majority of appeals filed are rejected as unfounded.

  • Raniere and Bronfman were going to appeal any decision regardless.

    They will appeal to the Supreme Court, because they can.

    It’s in their play book

    Raniere is the Ultimate Victim

    • vanguard has suffered enough. I think it’s time you heartless beasts with your bloodthirsty savagery understand how he has suffered. Grow up and become half the man he is. I’m sick of you all and sick of the Frank Report.

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Frank Parlato

About the Author

Frank Parlato is an investigative journalist.

His work has been cited in hundreds of news outlets, like The New York Times, The Daily Mail, VICE News, CBS News, Fox News, New York Post, New York Daily News, Oxygen, Rolling Stone, People Magazine, The Sun, The Times of London, CBS Inside Edition, among many others in all five continents.

His work to expose and take down NXIVM is featured in books like “Captive” by Catherine Oxenberg, “Scarred” by Sarah Edmonson, “The Program” by Toni Natalie, and “NXIVM. La Secta Que Sedujo al Poder en México” by Juan Alberto Vasquez.

Parlato has been prominently featured on HBO’s docuseries “The Vow” and was the lead investigator and coordinating producer for Investigation Discovery’s “The Lost Women of NXIVM.” In addition, he was credited in the Starz docuseries 'Seduced' for saving 'slave' women from being branded and escaping the sex-slave cult known as DOS.

Parlato appeared on the Nancy Grace Show, Beyond the Headlines with Gretchen Carlson, Dr. Oz, American Greed, Dateline NBC, and NBC Nightly News with Lester Holt, where Parlato conducted the first-ever interview with Keith Raniere after his arrest. This was ironic, as many credit Parlato as one of the primary architects of his arrest and the cratering of the cult he founded.

Parlato is a consulting producer and appears in TNT's The Heiress and the Sex Cult, which premieres on May 22, 2022.

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