Summary: Due to loss of jurors who realized that they had other commitments during the expected four or five more weeks of trial, a mistrial was declared.
It had been mentioned before recessing for the day before that three jurors were asking to be excused.
Before RvD began again, I watched a sentencing hearing for a woman who had pled guilty to a Medicare fraud offense. The defendant had health issues; however this was not her first offense, she did not clearly take responsibility in her statement, it was superficial. One would think that her attorney would have coached her … but many people don’t take coaching well. It takes practice to learn anything. Folks, start now, don’t wait. It can get more difficult as we get older.
Altonaga gave her the minimum sentence under the aggravated offense guidelines, almost three years, as I recall. She did recommend that the Bureau of Prisons place her in a medical facility.
Then the RvD trail opened, with results covered on the Mistrial post. Two more jurors requested to be excused. Even if one request were rejected, the jury size would be down to the minimum, and if anything happened to cause the loss of another juror in five weeks of trial, there would then be a mistral wasting a lot more time. Better to take the pill now than later. All the attorneys and Altonaga agreed. Mistrial. Jury selection to start again Friday.
7 thoughts on “RvD trial day 2 (Mistrial)”
I find it hard to imagine how a jury will ever be found, which is willing to suffer sitting through up to five weeks of interminable drivel regarding technical and commercial matters for which they have no interest at all, and virtually no ability to determine the logic and veracity of either side’s claims.
I think if this ‘mistrial’ conclusion is repeated yet again, they should ditch the jury and go for the case to be decided by a judge.
Even after following this for years, although the engineering side of the argument is very clear, the enforceability of the commercial aspects are still a bit obscure.
It is Rossi’s side, and his long list of witnesses, that makes it 5 weeks. IH were much more careful with their money.
They have a simple story to tell, Pace simplified it in his repeated opening on Day 3 (as reported by Law360, and I hope to convert my notes to a Day 3 report today.) Fake, fake, fake, and there is plenty of evidence for various fakeries. Rossi will claim that those are irrelevant, but I doubt that the jury will be positively impressed and want to award Rossi $89 million in the presence of all that. They might simply decide that Rossi’s case is not proven. The countersuit is more difficult, but there the issue is not centrally that the reactors did not work, but that testing to show that it worked was badly flawed, and was set up with fraudulent representation. This is consistent with Rossi’s history before and since he announced in 2011, something was off about every demonstration.
It is actually four weeks more, if what the Judge told the jury proves true. Ending week of July 24 means last day could be as late as July 28. “Five weeks” included jury selection and the opening statements.
The original Rossi case is simpler than it looks. Rossi’s complaint was misleading. Four out of eight counts were dismissed by motion. The central count 1 held on by a thread. Rossi did not claim estoppel in the complaint, but the Judge assumed it. (Had the complaint been clear and factual, there would have been no case on the contractual issues.) Rossi created a fog of circumstantial evidence to infer conditions quite contrary to the actual Agreement. On his critical fraudulent representation claim, critical to maintain Darden and Vaughn and Cherokee as defendants, there is no evidence we have seen other than Rossi Says, and what Rossi says is not what they actually said, with when they said it etc., and who specifically said what exactly, but his memory of what it meant to him.
No further facts were necessary to dismiss Rossi’s count 1, because there was no Second Amendment, and if the Second Amendment had actually had been valid, it was not followed. (Written agreement of all the parties to start date, which would have avoided all the dispute.) Rossi, instead, clearly developed a scheme to create a “GPT.” He probably planned to engage Johnson Matthey, but this is common for Rossi: he presents plans as if they are realities, already existing. “Platinum America Trust” was formed. That would allow a possible connection with JM. But JM wasn’t interested in working with him. They sell him his original order of platinum sponge for a million dollars (what did he expect, platinum is extremely valuable), but showed no interest in buying it from him. Rossi is never deterred. He defined himself, i.e., Leonardo Corporation and maintained the legal fiction of corporate identity as if it were real, independent persons communicating with him.
If this is skillfully presented to the jury, it is not difficult to understand. This is the problem: the Rossi scheme was literally insane. Nobody would pay him $89 million based on a severe overgrowth of fuzz. If Jones Day presents the case as willful fraud on Rossi’s part, the jury may be suspicious. After all, it was Rossi who sued! (This argument flies on Planet Rossi.)
I think Altonaga erred badly in not reviewing the Motions for Summary Judgment. There were elements there where there was no contrary evidence, in some cases, there was explicit agreement on necessary evidence. Rossi countered IH factual claims with innuendo and irrelevant arguments, such as “they never told me that I could not collect the GPT payment.” Rossi, in fact, knew that the 2nd amendment had failed. The 2nd amendment was proposed precisely because, without it, a GPT was impossible. So Rossi knew and his attorneys are being deceptive, presenting half-truths that can then be interpreted in his favor. It worked, the Judge assumed that there were no agreed-upon facts. However, that, my opinion, it a misunderstanding of the standard. A fact is not impeached by someone saying “disputed,” unless impeaching evidence is claimed and actually exists when the citations are read. To know that Rossi had presented a pile of misrepresentations, I had to study those documents for weeks.
It was a lot of work. Altonaga avoided the work. She could have set some interns to work on it, to prepare summary documents as I did. It was less personal work than she thought, the law was actually clear. That’s my opinion, and even if Rossi manages to overcome severe obstacles, and win a victory with the jury, there will be appealable issues. IH would declare bankruptcy, and Cherokee and Darden and Vaughn would appeal on the issue of their personal liability. If they are found liable, given the evidence we have, and the absence of clear evidence of willful fraud, that will be an error that the judge should have prevented. They should not even have been asked.
So part of the responsibility for a long trial is with Rossi, who must establish, by preponderance of the evidence, to the satisfaction of a jury, a series of improbable and probably non-existent “facts,” and part of the responsibility is with the Judge, who could have shortened the trial considerably by even one more dismissal (IH was flabbergasted that she rejected the MSJ in toto, the matter was so clear on some points.)
My sense is that Jones Day did not expect that response, that did not consider the arguments. She had previously considered arguments, some of them the same arguments, rejected four out of eight claims — those claims were preposterous from the start, leading to a question of why they were advanced by Annesser — but wanted to wait for Discovery. Discovery did not produce anything to change the situation as to basic legal issues. So I think they were astonished. She may make up for it in jury instructions. But what a waste!
Abd, you say;- “To know that Rossi had presented a pile of misrepresentations, I had to study those documents for weeks.”
I don’t think a judge would be prepared to spend the time which you did to determine if a point should be disposed of by way of summary judgement.
It would be up to the lawyers to present the facts in a clear and concise manner so that in reading a one or two page summary, the matter of each point was made clear beyond reasonable doubt that the litigation was groundless and bound to fail. Obviously, this was not achieved for all points of the litigation, hence those points for which it was not achieved are now subject to decision by a jury. That was not the fault of the judge but of the lawyers presenting the case for IH.
Personally, having read some of the transcripts relating to depositions presented by the lawyers of IH, I am not at all surprised. The arguments and points being made, or attempting to be made, were vague and very indistinct in purpose, with numerous ‘you know’ etc, and talking around the point, even to the extent of the judge having to complete the sentence for the lawyer in order to try and bring the fragmented and disjointed explanation of some very obscure point to a conclusion. I came to the conclusion that Jones Day must have been doing it on purpose with the intention of making sure the case did actually go to court, rather than have every point dismissed and then have Rossi complain that he had been denied his day in court.
Well, he will have his day in court. About 20 of them. And he has had more than a year to think about it all and play it out in his head many times over, during those all night vigils in his shipping container of the one year test. I think he had it all planned out from long ago and was fully expecting and ready for it, which is probably why his first course of action, when it became clear the 89 million dollar check was not in the mail, was to launch into litigation. Nobody does that as an initial response to such a situation unless they have been expecting it for months.
And why would he be expecting it for months, or longer?
Maybe it was because he knew full well that the thing didn’t actually work, so it was the logical end point to which he always knew he would sooner or later arrive at. My guess is however, he was hoping to arrive there just a little bit later with another 89 million in his pocket. No wonder he was peeved.
I keep in mind that in a previous similar event, Mr Rossi did manage to collect a significant payment for his amazing thermoelectric conversion cells, which apparently turned out to be equally as unfunctional as what IH claims for his latest venture.
The judge did not need to do what I did. However, doing what the Judge would properly have done would still have been tedious, unless the Judge had an intern prepare the kind of document I prepared. This would have been the process:
The judge would read the arguments, point by point, in the Motion for Summary Judgment. If the facts were as alleged, would the motion prevail? If not, that part of the motion would be dead. However, if it would, then the Judge would look at the specific evidence alleged. Did it show what was claimed? If so, was this impeached by other evidence? Rather than do this, the Judge skipped the entire process, based on her overall conclusion that the “parties agreed on almost nothing.” However, the issue is not “agreement,” but admissible, attested evidence. That a party says “disputed,” which Rossi counsel did regularly with plain fact, where what was disputed was not the fact, but possible interpretations of the fact. In some cases, the evidence Rossi cited to substantiate the “dispute” was utterly irrelevant or misrepresented, and plainly so, if one actually read it.
Jones Day plainly did not expect this behavior from the Judge. It was not how she had ruled before.
Similarly, Industrial Heat did not expect that Rossi would actually sue. A common Planet Rossi argument is along the lines of, “If Rossi was lying, he’d be crazy to sue.” IH knew that Rossi was eccentric and paranoid, this was all well-known. They did not think he was that crazy, or they imagined that counsel would correct him. But Annesser, apparently, in December, tossed gasoline on the smouldering issue.
Jones Day did not anticipate Altonaga’s reluctance to process an MSJ normally. Had they realized this, they might have left the weaker claims out. Instead, they went for every point where they believed the law and unimpeached evidence would support. That, then, made their motion larger than would have been appropriate to punch through the noise. Rossi’s smoke screen worked.
However, unless I miss my guess, Jones Day would not have made this mistake in presentations to a jury, which is all about communications skill. The opening statement shows a very simple focus, on “fake.” The evidence will show a series of misrepresentations where “fake” is a plausible summary. “fake independent customer” is practically a slam-dunk, if they don’t blow it. Rossi’s defense on that appears to be “it didn’t matter.” The jury will not agree. Juries don’t like “fake.” It is simple to understand. They don’t need to know physics.
Chaiken’s opening will come back to bite him. He established that Darden et al were enthusiastic about the Rossi technology. He established that, if real, this technology would be worth billions (or more, I generally say, about a trillion dollars per year), not a mere hundred million. This will make clear to the jury that Darden et al would be highly motivated for Rossi to succeed, willing to overlook and forgive much. Then it will not, I expect, escape their notice that Rossi took full advantage of this willingness to tolerate even outrageous behavior, and then, when they finally started to take precautions, to prevent their access, to threaten to sue them because they simply stated the truth about the GPT (they had not consented to a GPT, but to a power application and demonstration for possible investors as well as IH itself), to remove critical evidence (that might have confirmed Rossi and Penon claims), to destroy emails, and possibly to bully Fabiani into doing the same. They will need to study the jury, to carefully observe the jury. I would recommend to all the parties, focus groups or the study of what observers of the trial see. Unfortunately, I know too much, already, so while I will be looking at how I think the jury will respond, that is not the same, necessarily, as someone not already informed.
I think this part of your above post will be the most productive part of the defense, where you say;-
“The opening statement shows a very simple focus, on “fake.” The evidence will show a series of misrepresentations where “fake” is a plausible summary. “fake independent customer” is practically a slam-dunk, if they don’t blow it. Rossi’s defense on that appears to be “it didn’t matter.” The jury will not agree. Juries don’t like “fake.” It is simple to understand. They don’t need to know physics.”
I hope Jones Day / IH continue to pursue that aspect. It will certainly be more productive with a jury than arguments over whether the test conformed with the legal requirements of some modified or re-written agreement.
Almost everybody understands fake and fraud. Most people can spot it. Nobody likes it.
For this fraud to remain unacknowledged, the entire jury would need to be chosen from the ardent supporters over on ECW, and that facility is just not available to the Rossi defense.