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."

UPDATE MAY 2021: Way back in 2019, Philip Zodhiates filed a petition to Judge Acara claiming that his legal team (he only specifically mentioned James Grable and Robert Hemley) gave him ineffective counsel as to the use of the "affirmative defense." Even though Philip has now been released to home detention, Judge Acara has yet to rule on the petition. But you read it here first. In other news, Janet Jenkins (apparently she no longer uses the surname Jenkins-Miller) will have to wait until the resolution of Lisa Miller's international kidnapping case before her civil lawsuit can go forward. If she lives that long.