A hearing for a mistrial was held this morning before Judge Nicholas G. Garaufis in Brooklyn Federal Court in the case of the United States v. Keith Raniere.
The jury was not present at this hearing.
The trial concluded yesterday with the end of closing arguments and the judge’s instructions to the jury. The jury was set to begin deliberations this morning.
Following a brief hearing, the judge denied Raniere’s motion and the jury is deliberating as of press time.
The hearing arose from a letter filed by Raniere’s attorney, Marc Agnifilo, asking for the mistrial based on the halting of cross examination of the prosecution’s witness, Lauren Salzman, by the judge on May 22.
A visibly upset Judge Garaufis ordered Raniere’s attorney to sit down and stop the cross-examination as Salzman was sobbing nearly uncontrollably. It occurred near 5 pm – the close of court for the day.
Salzman did not return to the stand the following day.
Salzman was the sole cooperating witness the prosecution called. Allison Mack, Nancy Salzman, Clare Bronfman and Kathy Russell, who all took plea deals, as did Lauren, were not called as witnesses.
Today’s hearing on the mistrial motion was brief. While the motion was denied, it will likely loom large on appeal.
Back on May 23, the morning following Salzman’s terminated cross-examination, Ranieres’ attorneys filed for a mistrial – and that motion was also denied. They did not make a motion to reopen the cross-examination of Salzman at the time.
At the time, Agnifilo, arguing only for a mistrial, said that the abruptly halted cross-examination denied him the opportunity to ask Salzman about the impact of her potential jail term on her decision to cooperate, certain facts she learned in discovery that caused her to view Raniere and DOS differently than she had previously, certain portions of audio recordings she heard of meetings between Raniere and other DOS members, and other aspects of her plea agreement and her cooperation.
As a result, Raniere’s attorney, Agnfiilo argued at the time, “the jury is left with only the prosecution’s version of these topics, which have not been covered in cross-examination.”
Yesterday, in the rebuttal argument by First Assistant United States Attorney Mark Lesko, Salzman was mentioned.
Showing the jury a copy of her cooperation agreement [which they are permitted to read during deliberations], Lesko said, “Lauren Salzman, let’s talk about her for a second. Lauren Salzman, who pled guilty to two racketeering offenses. Lauren Salzman who pled guilty pursuant to this cooperation agreement, Government’s 3500-LS-6. Read every single page of this cooperation agreement. And you’ll know that Lauren Salzman is facing 20 years in prison.”
In his motion today for a mistrial, Agnifilo mentions Lesko’s statements about Salzman.
Agnifilo wrote in his mistrial motion filed earlier this morning with court: “Ensuring that the violations of Keith Raniere’s Sixth Amendment right to confront Ms. Salzman and of his Fifth Amendment right to a fair trial resulted in optimal prejudice to the defendant, the government [Lesko] made a specific point of focusing precisely on those areas that the defendant was unable to explore through cross-examination. In the government’s rebuttal summation, First Assistant United States Attorney Mark Lesko … waived [sic] the cooperation agreement in front of the jury while making this argument [that Lauren was guilty, hence so is Raniere etc.]. In doing so, he specifically drew the jury’s attention to a topic that counsel was unable to address in cross-examination. By emphasizing Ms. Salzman’s cooperation agreement, knowing that the defendant was unable to confront her about it, her reasons for pleading guilty and other critical related questions, and by further vouching for truthfulness and reliability of Ms. Salzman’s guilty plea, knowing that the defendant was likewise prevented from questioning her on that central topic, the government exacerbated the already grave prejudice stemming from termination of the cross-examination of Ms. Salzman. We, therefore, renew our motion for a mistrial.”
The judge, in denying the motion for a mistrial this morning, made the point that if Agnifilo had made a motion during the trial to reopen the cross-examination of Salzman, he would have considered it.
He told Agnifilo that the reason he ordered him to sit down when he was cross-examining Salzman was because Agnifilo was not following his instructions.
“You were putting the witness in peril of having a breakdown,” he told Agnifilo.
Dismissing the idea that his disciplining Agnifilo before the jury hurt the defendant’s chances because it might have had a negative impact on their impression of him, the judge told Agnifilo, “The jury listened attentively to your closing arguments. It had no effect on the jury, because you’re a very capable lawyer, and you are doing very good work.”
The jury has until Friday to reach a verdict. If they are unable to do by then, three jurors, who had scheduled vacations previously for next week, will be dismissed and replaced by three alternate jurors. If this occurs, then the newly constituted jury is required to begin its deliberations from scratch as if they had not previously deliberated as a body.