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Friday, 30 September 2016

The Plight of the Righteous Defendant: the case of the Miller Kidnapping Trials

In my previous post, I promised to provide another post on the Miller Kidnapping Case, in which I would  share more than the bare facts of the trial.

Here it is.

I first of all refer my readers to a post from 2007, which I ended as follows:
 When what used to be considered wrong becomes lawful, sooner or later what used to be considered right becomes unlawful.

It's happening. 
This truism is no better exemplified than in the Miller Kidnapping Case, which is--contrary to the federal government's claims--all about a girl being kidnapped from her mother. Well, yes, that is what the government says it's all about, but they have the wrong mother in mind.

Janet Jenkins is not Isabella's mother, nor has she ever been. She did not conceive her, did not nurture her either in her womb or at her breast, did not give birth to her, did not sign her birth certificate, was never even named on her passport application. Lisa Miller is the only mother Isabella has ever had or known, and this kidnapping has always been about Janet using the full force and power of the United States Government to steal a child away from its mother through the legal fiction of declared parenthood. Now that we've clarified that, we can continue with our evaluation of the trial.

So far the parties to this case have decided to go with jury trials. This is usually good business for the lawyers, as jury trials always take a lot longer then bench trials. But it's not usually very good business for the defendants, as we can see from the very recent results of some celebrated trials in Baltimore. I quote:
Baltimore Circuit Court Judge Barry Williams acquitted Rice in a bench trial. Williams also has acquitted Officers Edward Nero and Caesar Goodson in separate bench trials. Officer William Porter's trial ended in a hung jury in December.
Notice that the one defendant who put himself at the mercy of a jury barely escaped, while those who put themselves directly at the mercy of a judge were all acquitted. There's a reason for why this could happen, and it's called voir dire. That's the legal name for the process by which the prosecutor systematically excludes everyone from the jury who might be counted on to acquit. Since this process isn't perfectly predictable, and prosecutors don't always know exactly what questions to ask every time, every once and a while a rogue juror slips through to throw a spanner in the works. But in most cases the prosecutor ends up with exactly the jury he wants--and needs--to secure a conviction.

Mr. Grimshaw was convicted in a bench trial back in 2007, but it wasn't his point to be acquitted. He wanted to preach holiness in the courtroom, and not having a jury to preach it to detracted very little from his goal. Now, there has been some open mention of the gospel in the Miller proceedings, but usually by a witness, and only tangentially by an attorney; never by the defendant in a closing statement to which the opposition cannot easily object. In a trial where conviction is pretty much a foregone conclusion, a righteous defendant forfeits a powerful pulpit by exercising his right to silence, and I hope that future righteous defendants--and there will be many--will take heed to the new way of doing things, and take their lead from Mr. Grimshaw, not Mr. Zodhiates.

The lawyers carefully hired by Philip Zodhiates mostly fell into the trap of trotting out their usual tricks, and I have to say to his credit that Prosecutor Paul van de Graaf easily ripped them to shreds before the jury (when the judge himself wasn't, after dismissing the jury yet again, reprimanding the defence for even attempting them). Yes, the prosecutor used some tricks of his own, but with such class and style that none of them even met with immediate objection. Even the perfunctory motions to acquit for lack of a case, duly offered by every defence attorney since time immemorial, showed, in this case, a disconnect with the reality that the defence did not dispute the facts that had been presented by the prosecution. This is what happens with defence lawyers who have made a career of trying whatever tricks they can to win acquittal for someone who is actually guilty of evildoing. But people need to learn a new way of doing trials in this new world where wrong has become right, and the sooner the better.

What this will require is a new breed of lawyers. I was most impressed in this trial, at least on the defence side, by the performance of David Boyd. He's been cited as "a rising star" by the legal profession and, once he has his own law firm and doesn't have to toe the line drawn by the old school, I can see him excelling at the new reality. For example, from the time the prosecution rested until the closing arguments had ended, the only motion floated by the defence that was even entertained by the judge (other than a few of the many objections being sustained, as could have been expected) was Mr. Boyd's claim of a legal falsehood in Mr. Van de Graaf's closing argument.

Mr. Van de Graaf had to demonstrate to the jury that Mr. Zodhiates, although never having set foot in Vermont in the commission of his crime, was still bound by the decisions of Judge Cohen in the Vermont family court. He dismissed all the legal decisions in Virginia--nineteen in all, extending from 2004 all the way to 2010, after the facts on the ground had already rendered them moot--as having no bearing on the case. They were "a dream, a wish, even a prayer."

But after all the arguments were over and the jury had been sent home for the day, Mr. Boyd pointed out to Judge Arcara that Lisa Miller's case against the state of Vermont had been referred [as the Constitution stipulates it should] to the Supreme Court, and had that august body ruled her bound to the the laws of the state in which Isabella lived, rather than the state in which Janet Jenkins had been ruled to be Isabella's parent, it would in fact had rendered all six Vermont decisions inapplicable. Had the Supreme Court not declined to hear the case (poised as it was to overthrow all bans to parental claims such as Janet Jenkins asserted, like the one in question in Virginia), this trial may well never have happened. The judge was caught off guard by Mr. Boyd's citation of USC 1204 and its case law stipulation that only the laws of the state of residence are to apply in international kidnapping cases, and agreed to consider including that information in his charge to the jury--for all the good it may have done, as we have seen. But it does show the wisdom of hiring someone who closely followed the prior trial, where this argument was previously made.

There were four co-conspirators indicted in this case; so far, we have only seen the trials of half of them. I trust the others will find my admonitions helpful in the future, whether immediate or distant.

And I do believe there will be at least one more post on this topic, regarding the sort of evidence that came up in the first two trials, and what it says about the investigative powers of the federal government.

Oh, one more thing: at a subsequent trial, it would be interesting to see if anyone is allowed to offer testimony in support of "affirmative defense under this section that . . . the defendant was fleeing an incidence or pattern of domestic violence."

Tuesday, 27 September 2016

Kidnapping Trial Updates

It's been a frustrating wait for more information in the Miller kidnapping trial, but word has finally come in from a reporter on the scene.

Since so little information has come out about the Zodhiates trial, perhaps we should start by setting the scene. Unusual for a kidnapping trial, there are five attorneys on the case: two for the prosecution and three for the defence. One factor ramping up the legal fees is that the defendant and all the defence witnesses are from the Shenandoah Valley (a point repeatedly brought up by the defence). Two attorneys are local; one on each side. But the odd thing about the other three is that they are from Burlington, Vermont. Now, why would a defendant from Virginia being tried in the Western District of New York hire a team of lawyers from a Vermont firm? Well it turns out that the lead prosecutor, Paul J. Van de Graaf, Chief of the Criminal Division of the U.S. Attorney's Office for the District of Vermont, is very familiar with this case: he prosecuted Ken Miller back in 2012. The two Vermont lawyers hired by the defence--Robert B. Hemley and David A. Boyd--are with Gravel and Shea, a Burlington firm that may have provided local talent in the earlier trial. Michael D. DiGiacomo and James W. Grable are the local talent for this trial, but in the main it is a case of Van de Graaf v. Hemley. 

Day Six
Today the prosecution rested, and the defence had its turn. Philip Zodhaites' s defence team has chosen to go after the prosecution's bizarre portrayal of him as a rabid anti-gay crusader, devoting their examination time to a series of friends and coworkers who all agreed that Philip hasn't a hateful bone in his body. It took some work, but Judge Arcara agreed to at least allow the defence to query witnesses as to general and specific opinions of the defendant's reputation as being a) law-abiding and b) generous to anyone in need, irregardless of their race, colour, or creed. The other questions raised were how hard Response Unlimited worked to turn over emails subpoenaed under Janet Jenkins' s civil suit (which is stayed pending the outcome of this case, but has apparently provided useful discovery for the prosecution), and whether there was any indication in any email recovered from RU's email server that the Miller custody case was  still pending at the time of the alleged crime (every indication is that it was).

The lawyers spent about as much time offering objections to this line of questioning (the prosecution) or to the court sustaining them (the defence) as they did actually questioning the defence witnesses. That notwithstanding, the 18-man jury (actually 11 men and 7 women) may have the case as early as Wednesday afternoon.

Meanwhile, Timo Miller (whom the government still regards as a co-conspirator), in a move right out of the CIA playbook, has been secretly rendered to a prison on US soil.

Day Seven
Today the defence also rested--so much for claims that the trial would last two weeks. Had it not been for Judge Arcara dismissing early so he could attend a judges' meeting, it would have already gone to the jury.
This morning the prosecutor encountered a rather prepared witness. He's asked each of the defence witnesses about their refusal to talk to the federal investigator, but Cindy Erkel wasn't about to let him frame the debate. In fact, she had a riposte ready to parry his every attack. The cross-examination went something like this, with the prosecutor's initial questions having been met with pretty much the same noncommittal responses from the previous defence witnesses (the goal is always to lead the jury to believe that no one knows the real Philip Zodhaites, the dark evil criminal; thus none of the witnesses to his generous and non-discriminatory nature are to be believed):
Q: Is Philip Zodhiates your friend?
A: Yes.
Q: There are different kinds of friends, good and otherwise. Would you say that Mr. Zodhiates is a good friend?
A: Yes.
Q: But by good, you usually mean intimate. Someone you share secrets with.
A: Right.
Q: More than just a neighbor, then.
A: Right.
Q: But you don't talk to him every day?
A: No.
Q: You don't see him every week?
A: I don't see ANYONE at a weekly gathering. I don't have ANY friends of the sort you are describing.
Q: You've already talked to the defence attorneys, haven't you? [he can't ask about what they discussed due to attorney-client privilege]
A: Yes.
Q: Did [the federal investigator] call to talk with you?
A: Yes, I told him I would be quite willing to talk to him when I got to New York [to testify].
Q Did you tell him you wanted to get back to your busy life?
A: It was a very pleasant conversation. He used the word 'attempt'.
Q: But you told him you were too busy to talk to him, so you never called him back?
A: It was not because I was too busy to talk to him. I declined because he used the word 'attempt', and I told him that.
Q. ANSWER THE QUESTION! Did you attempt to call him back?
A: It never occurred to me to call him back.

Day Eight
Thursday morning started out with Judge Arcara reading his 130-page Charge to the Jury. It took him longer to read it than either of the Summaries lasted. Then then jury went into deliberation, returning a verdict of "guilty" on both charges--to no one's great surprise. The judge had so construed the presentation of evidence, and so scrupulously prevented the defence from going into the jury's right to judge the law as well as the facts, that there was no other likely outcome. Like many trials, this one had already been won in voir dire, when anyone who strongly believed in the government's responsibility to protect an innocent child from a sexual predator was excluded from the jury.

My post-trial commentary will follow in another post, but since this post is a major portal for visits to this blog, I will continue to add dated updates as appropriate.

Another blog has picked up on this report, so I'll address here some of the questions raised there.

 1. Yes, Timo Miller was officially 'deported' from Nicaragua. But it was no less than a classic rendering operation. He was held for two months without benefit of habeas corpus or any charges filed, so clearly it was a behind-the-scenes operation with the US Government pulling the strings. Why it took so long to transfer him directly to a US prison, nobody who knows is willing to say, at least not by using an usecured server.

2. Yes, bribery has been going on, but not by the Mennonites in Nicaragua. They report that an extensive intelligence network has identified former church members, who have been recruited to infiltrate back into the churches in an attempt to locate the Miller fugitives. Even current Mennonites who are disgruntled for whatever reason have been tracked down and offered the same deal. Nobody in Nicaragua would have the money, means, or motive to carry out an operation of this scale.

3. The defense was severely limited by Judge Arcara as to what they could claim, who they could interview, and what questions they could ask.

4. The prosecution's duty to prove intent on the part of Philip Zodhiates was fully met, on the grounds that intent to violate an order which one knew in advance would later become effective counted, and by subpoenaing emails by all three of the arrested co-conspirators, content was found to adequately show that the parties had reason to know that what they were doing would not meet with US Government approval. Especially damning was the January 2009 email by Philip to Lisa's lawyer, indicating that 'if no legal solution' was available, he had another option he'd like to offer them.

5. Lisa is still at large, and apparently intends to remain that way at least until 2020. It must be extremely frustrating to the feds that they can't find her, after letting her slip out of their sights as soon as they arrested Timo. Isabella has spent most of what she can remember of her life in Central America, so there's no need to pity her; she's home with her mother, and if she didn't prefer that to any alternative, I'm sure we'd have heard of it by now.

UPDATE JAN 30, 2017
Judge Arcara was supposed to sentence Philip Zodhiates today; as is usually the case, this action was postponed to a later date.

The sentencing was rescheduled to align with Timo Miller's sentencing. You can read about the results of both of these hearings here.

Thursday, 22 September 2016

Thinking about the future

Looking at an examination of the implications of Moore's Law, in which the map becomes the territory, we see that it is a human tendency to achieve exactly what has been expected, until the free market comes into play--than progress can actually be accelerated. In the absence of the free market, progress slows back down at once.

The very idea of having a government Department of Innovation is thus pseudoscientific.

Tuesday, 6 September 2016

Can a mathematical formula improve my chances of winning the lottery? and other relevant questions

I've written before under the labels of greed and deception, but my topic today is specifically on Jared Wilson the lottery winner. Run a search on that character string, and you are likely to find that the first few hits--even those claiming to review the program--are nothing more than links back to the infomercial that first introduced me to Jared. In other words, this is a highly sophisticated scam; even searching on 'Lotto Destroyer Scam' takes you back to the exact same site. Someone has gone to a tremendous amount of work to part you and your $147.

So the question: Does it Work? still needs to be addressed. Which I will now do, as a public service and without any requests for remuneration.

First of all, you need to know that there is no such person as Jared Wilson who won the lottery six times. That's just a hook to get you to the website, where you go on to read that 'Jared' actually wins the lotto at least once a month.

Stop right there. If he's pulling in so many thousands of dollars in lotto winnings, why would he share his secret with you, even if you pay him $147? If his system is guaranteed to turn you into a winner (as he says it is), then why isn't he charging at least $50,000 for it, to forestall his future loss in winnings as the pot is further diluted every time someone else starts claiming a regular share of it?

One thing we know, 'Jared' isn't the mathematician that he claims to be, or he would have realized this.  Instead, 'Jared' is a shrewd psychologist, one who well understands The Gamblers Fallacy and knows 'he' can make way more more money by selling a scam than by playing the numbers.

We also know that 'Jared' has a lot of legal insight, as 'he' is running a scam that won't work for the majority of people that use it. Were his product actually refundable, you can bet he wouldn't stay in business for long. Obviously the process of getting one's money back is about as easy as winning the lottery without using the system. They know way more about keeping your money than you do about getting it back.

One more thing. 'Jared' obviously worked hard to sound like an American, but there's just a enough broken English in his copy to reveal an overseas connection. Not to mention the total disconnect in logic that a Pakistani gas station owner would be mad at him for winning the lottery five times! I guess 'Jared' expects you not to know that whoever sells a winning ticket gets paid right along with the purchaser.

So, yes, you read it here. Jared Wilson (or whatever he's calling himself this week) and the entire Lottery Destroyer is nothing more than a scheme to part you and your money. Lotteries don't hate him, they love him--he's bringing in a lot more business as people throw good money after bad before finally realizing that they were duped.

Oh, and those people who do win back-to-back lotteries? There's a reason for their success, and it's a simple mathematical formula: use your million in winnings to buy another million tickets, and you're statistically guaranteed to win again. Sadly, most lotto winners use their winnings to keep right on playing--such is the nature of an addiction.

Want to get rich, and stay rich? Then don't buy lottery tickets or lotto winning schemes; sell them instead.

The same could be said for membership in multi-level marketing schemes, as they work pretty much the same way. But at least you get a hopefully useful product for your pains.