9.Mistrial Argument Over Witness Naming and Proposed Privacy Procedure
42 linesMS. PENZA: Your Honor, I don't know if this would be a natural breaking point.
THE COURT: It's about five o'clock. We'll suspend at this point and resume tomorrow morning at 9:30.
Let me remind the jury that it is extremely important that you follow my instruction that you not discuss this case with anyone, not your family, friends, or business associates, and not your fellow jurors.
In addition, you must not read, listen to, watch, or access any accounts of this case on any form of media, newspapers, TV, radio, podcasts, or the Internet, no research or seek outside information about any aspect of the case. Please do not communicate with anyone about the case on the phone, whether through e-mail, text messaging, or any other means, through any blog or website or by way of any social media, including Facebook, Twitter, Instagram, You Tube or other similar sites. You must not consider anything you may have read or heard about the case outside of this courtroom, whether you read it before or during the jury selection process or trial. Do not attempt any independent research or investigation about this case; do not visit any of the locations identified in the questionnaire or discussed during the course of jury selection, the jury selection process, or trial; and we will see you tomorrow morning at 9:30. Please get a good night's sleep. Thank you for your attention today.
All rise for the jury.
(Jury exits.)
THE COURT: All right, the witness is excused for the evening. Please do not discuss your testimony with anyone. We will resume tomorrow morning at 9:30. You may go now.
Everyone else may be seated.
(Witness excused.)
THE COURT: Ms. Penza, about how much more do you have for this witness?
MS. PENZA: I think her direct will be about an hour longer.
THE COURT: An hour longer, okay.
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.
MR. 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 singling 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?
MS. 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, and the Government -- first of all, Mr. Agnifilo knows exactly the line that the Government is drawing and the Government is not -- is not holding back the last names of first line DOS slaves who are directly under the defendant, and so the -- Mr. Agnifilo knows that, so the fact --
MR. AGNIFILO: That's not --
THE COURT: Just sit down, I have heard from you. Let me hear and you can respond.
MR. AGNIFILO: All right. Fair enough.
MS. PENZA: And so the Government is very happy and 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 -- 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.
MS. 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 does not have all the -- has not received the discovery in this case. The discovery has been exchanged between -- well, from the Government to the defense as it turns out. There's been no reciprocal discovery, as I understand it.
MS. 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 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.
MR. 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.
MR. 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?
MR. AGNIFILO: I objected to the use of --
THE COURT: For the people who are allegedly victims, that was your objection.
MR. AGNIFILO: I think that in this case people should have their names. There's been no -- 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 --
MR. 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.
MR. 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, so don't tell me about excess, okay? I saw that movie three times, really.
MS. PENZA: We'll submit something.
THE COURT: By tomorrow morning.
MS. PENZA: Yes, Your Honor.
THE COURT: Anything else?
MR. AGNIFILO: Nothing from us.
MS. PENZA: No, Your Honor.
THE COURT: Be here at nine o'clock tomorrow morning, we'll discuss it more.
MS. PENZA: Yes, Your Honor.
(Matter adjourned to May 8, 2019, at 9:00 a.m.)
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