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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.

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