See also RvD trial day 2 (Mistrial)

10 jurors were selected yesterday. First 3 of them requested to be excused, that was known yesterday. Pace agonized over allowing this. On the one hand … and on the other…

Pace suggested interviewing them (I.e., as in the original selection.) Altonaga said she had no questions, it was all written and clear.

Then Altonaga announced there were two more. At this point, all the lawyers agreed: mistrial.

Lawyers in court at 9 AM, Friday the 30th, to go over juror questions. Selection begins at 10 AM. If that finishes, opening statements, deja vu all over again. More when I get home, I’m sitting outside the courthouse.

I have a few minutes before leaving for the Court. Reading the LENR Forum discussions,  a few clarifications and brief comments.

The trial actually started with 10 jurors seated on the 28th. The Judge read the case summary (see the docket), then Rossi and IH presented opening arguments (Chaiken and Pace respectively). So there was a bit more than an hour in actual trial.  Then, before adjourning, the Judge noted requests from jurors to be excused due to conflicts, said that this would be addressed in the morning at 10 AM. There was some hesitancy on IH’s part to accepting the requests. Pace was really unsure, huddled with Darden. Then the Judge said there were two more requests,  and all the attorneys agreed on a mistrial. I had a chat with one of the lawyers, who pointed to the real problem: jurors were not prescreened for “five week trial.” So a lot of time was wasted interviewing jurors who weren’t ready to serve. We’ll see what happens today.

Chaiken said that jurors will see evidence from Penon. That might be the video deposition.

Practice makes perfect. Chaiken and Pace get to present their opening statements to a new jury. The jury will again be cautioned that lawyer claims are not evidence. When I get a transcript I may be handing out some Pants on Fire awards.

Shanahan’s remarks are totally off-topic, but Jed is right: Shanahan is fringe,  and keeps himself there by not actually seeking communication and agreement, merely claiming he has been unfairly rejected. Ironic, eh? I’ve been pointing out the irony for years, and have many times offered to assist Shanahan in settling issues. Yes, “random CCS” was an error. There are errors aplenty on all sides. So? There are places where a full and complete discussion can take place. I created one on Wikiversity. Shanahan ignored it. On Wikipedia, Shanahan kept attempting to put information in the Cold fusion article that did not meet Wikipedia guidelines. It was not just “CFers” who removed it, it was ordinary Wikipedia editors. An article on CF calorimetry with his ideas was deleted by JzG, a very much anti-CF administrator. I rescued it for work and  review. My reward? Shanahan supported my ban.

There is something special about actually meeting Rossi and the others. This is no longer dealing in abstractions, these are real human beings.

The document referred to as the Cassarino (Ampenergo) deposition is actually a much longer document containing all the depositions IH is planning to introduce, with annotations showing attorney objections, etc. Rossi, because of “technical difficulties,” planned to present that in person to  the Court.

Many writers (on all sides) are cherry-picking the evidence. One example is IHFB’s continued insistence that Woodford considered the Rossi technology “core” for their investment; in fact, the statement in an email has a clearer interpretation: Lamacraft was commiserating with Darden or  Vaughn (I forget which) over the disappointment, because Rossi was core to the original investment. Not the Woodford investment.

Again and again, it is asserted that IH used the Doral test to recruit investors. There was only one major investment after Doral began, and that was Woodford, and it is quite apparent that Woodford insisted on this being an investment into a UK limited liability company, which would then own Industrial Heat. Not in IPH, which had a contractual relationship with Rossi (and which was the original idea). IH did not actually use Doral to raise money, but Lamacraft wanted to see Doral, I’m sure. The Ampenergo notes (I have covered them in detail) show that Lamacraft was not particularly impressed.

And I must leave now. I have no internet access while I am in the Court, until I retrieve my phone from security and walk outside, and they would not be pleased by retrieving it for a few minutes…. I may still apply for a press pass, but until I have one …. I have limited facilities here.


Author: Abd ulRahman Lomax

See http://coldfusioncommunity.net/biography-abd-ul-rahman-lomax/

27 thoughts on “Mistrial!”

  1. Hi,
    Is it likely Penon will not appear in person? Will the jury be relying on Penon’s deposition given from the Dominican Republic?
    I’m sure there are many questions that would should be answered in order to give the Final Report any credibility. 1) No clear indication on any of the interim or final reports that this was indeed the Guaranteed Performance Test, this should surely have appeared on the very first page of each report.
    2) The inaccuracy about the number of reactors under test, never corrected even in the final report.
    3) Why he wasn’t at the Doral site for the official start of testing?
    4) Why he took readings of individual reactor currents which never appeared in the final report?
    5) various issues involving the installing, recording, testing and removal of the test equipment.

    Without such detail his testimony will surely be in serious doubt?

    1. I have seen no evidence that Penon was aware of the contents of the License Agreement. It would have been a violation of confidentiality to tell him (other than conveying test requirements). I do not know if Penon will appear in person. It is possible that the video deposition will be shown, I am not clear on the rules about that.

  2. David French writes:

    Abd, you are doing an invaluable service. Thank you for being there. It’s a major contribution.

    In the course of a trial, the jury has to keep its eye on the ball. That is, they have to remember that their job is to decide the issues listed in the pleadings. Sometimes the evidence can ramble on and be distracting. Lawyers do not generally comment on the reason why they are presenting certain pieces of evidence. They put a witness in the stand and ask them questions without turning to the jury and explaining: “This is relevant because in the pleadings where I allege….. I believe that this person’s testimony establishes that to be true.” That kind of explanation is not mixed-in with the presentation of evidence. It may be asking a lot, but if you could do a listing of points that each of the parties proposes to establish, that would be very helpful. At least, you might be able to report the evidence in the context of the points that the evidence supports.

    Regarding Ross’s case, I haven’t read the pleadings for a long, long time. And I haven’t reviewed the transcripts of the opening statement by the attorney for Rossi. But I suspect that he will be placing great emphasis on the selection of Penon as the authority to assess whether the system works. The poor jury will have to then decide whether Industrial Heat must surrender to Penon’s opinion – they did agree to do so at one point, I believe. Of course, Industrial Heat will argue that Penon’s opinion is not bona fide, that it is part of an overall fraudulent scheme. Therefore it does not qualify as a real Report.

    Some relief from the stress experienced by the jurors may arise from the principle that person’s asserting facts must prove them. And the mere filing of a “Report” by Penon isn’t necessarily the filing of a bona fide Report as contemplated in the original agreement. Industrial Heat should argue that the Report is a nullity if the circumstances show that the Report is part of a larger fraud.

    Really, we have to try and understand why Rossi’s lawyer is there arguing the case at all. They must have a theory that they can win on some point or principle.

    Keep up the good work.

    David French

  3. Out of curiosity, how constrained will IH be in establishing (for instance) fake customers?

    It’s clear that in deposition Rossi has successfully claimed customer identification is confidential, at least in terms of the released portions. Can he continue to claim this at trial? Has IH any chance at following the money trail to show that there weren’t actually any customers?

    1. There are layers to this. The evidence is adequately clear that Rossi initially represented that the customer for the steam was Johnson Matthew. Rossi will claim that they knew the customer was a “newly formed entity,” but the record is clear that Rossi represented that JM products was formed to allow JM to maintain privacy. Bass asked about JM. The record is also clear that Rossi entirely controlled JMP. Rossi paid all JMP expenses. That was justified by a plan that JMP would sell product to Rossi. The move of the plant to Doral was clearly based on false claims. A trivial amount of material was processed. It is not crucial if there was or was not any customer of JMP other than Leonardo. This is a very simple story for IH to show the jury, and Pace hammered it. Chaiken pointed out that the term sheet didn’t say “Johnson Matthey“ anywhere. Of course it did: “JM.” The great temptation presented to Jones Day is to tell too much. The history of the investment is one piece of flabber after another. Rossi counsel has laid out a strategy, basically that IH knew and accepted the situation. They also are repeating the older claim that IH only complained when it was time to pay. The theme developed by Chaiken Friday was that everything changed when IH closed on the $50 million. He attempted to develop that, I think this was supposed to be the point of that abortion of a graphic (which wasn’t used on Wednesday.)

      I have much more to write, but I’m struggling with computer problems…

      1. That’s not quite my point, although there is an email from Rossi to Darden in which he states that JMP’s identity is confidential, and that “in four or five months” they might reveal themselves, but until that time identification is “not possible”. Since JMP was entirely Rossi, he was saying the Rossi (Leonardo) was helpless to identify Rossi (JMP), because Rossi(JMP) insisted that he not do so, and that really doesn’t wash with me.

        No, since Leonardo was paying for JMP’s power during the entire Doral test, while claiming that JMP was producing and selling “product” to an unnamed customer, is there any way to force Rossi (JMP) to identify this customer? It seems the heart of the question, and there are various direct ways to get a handle on such transactions. If they exist. Or can Rossi continue (as Leonardo) to claim that the information is confidential, thereby blocking inquiry into its reality?

        1. Rossi can claim what he likes, but if he perjures himself doing so, he could go to jail. There are two kinds of “customer” here, the customer purchasing steam, which is JMP, and the issue there is the ownership of JMP. That is now known, Rossi’s claims about them later revealing their identity were part of his deception. The customer (JMP) is owned by Platinum America Trust, beneficiary Di Giovanni, Rossi’s old friend, and full control was exercised by Rossi. Then there is possible “customer” for product. From what has been disclosed of the agreement between Leonardo and JMP, Leonardo was also that customer, though the amounts of product were extremely small, there is no way they needed a megawatt of steam 24/7. A few kilowatts would have been more than enough for any conceivable process using steam.

          Like the turtles holding up the Earth, it’s Rossi all the way down.

          1. Initially we were told by Rossi that Di Giovanni was a client of Henry W Johnson that he first met at the lawyers offices, it has now been admitted in evidence that Di Giovanni is a long standing friend of Rossi, of some 14 years. There is also some discrepancy about the formation of Platinum America Trust which Henry W Johnson was keen to evade answering. It appears to me that Platinum America Trust was created at least a week before Henry W Johnson knew anything about Di Giovanni. Interesting name for a company formed by Henry W Johnson well before Rossi ever mentioned platinum sponges don’t you think? These moves seem to have been premeditated with uncanny foresight.

  4. Abd,

    Thanks for providing frontline coverage of what is quite an extraordinary trial. For me, your style works pretty well so far. I agree that human interest is an integral part of what’s happening here.

    I do find the reference to external blog discussions (lenr-forum and the likes) is a bit distracting, and believe these blog posts would probably have maximum value if they do not require the readers to catch up on other blogs/forums simultaneously.

    So much of the information in the blogosphere is riddled with endless (personal) arguments.

    It would be an intellectual relief if we could find in this blog a series of focussed articles just on the court case, written by someone who’s not only physically present, but clearly has the capability, background knowledge and interest to write a high-quality series that puts the facts into relevant context in digestible chunks.

  5. Even do I appreciate what you do, but could you please stop trashing Rossi’s lawyers and parsing IH’s lawyers, right from beginning. Leave your personal preferences aside and just report what you see, without your one sided opinion.

    1. This is a blog, and I express my opinions. You are referring, I think, to a comment of mine here, not to a blog post. I do intend to report fairly, and believe that fact and opinion are easily distinguished. I also am thoroughly familiar with the evidence already revealed, so you will see comments here based on that. In a comment here, I gave some comments as to how the attorneys may be seen by the jury. Chaiken, for example, speaks in a particular way. It was very clear to me, I am trained in communication. He could use some training! He has a difficult job. I did not “trash” him. What I wrote about Pace was, again, an assessment of how he might be seen. “Self-deprecating” is not praise. It could be a skillful act. The two third party attorneys made the point that what was presented by the first two opening statements was not evidence. That was both true and misleading. Both of them pointed to evidence that will, I’m sure, be admitted, so it’s not evidence quite yet.

      I would do my readers a disservice if I confined myself to pure fact. However, that Chaiken speaks in bursts is fact, and that Pacer is self-deprecating is also fact, it was quite visible in his comments in depositions. In voir dire, it was blatant, “I’m sorry” and “I apologise,” were ubiquitous. What these mean is something else. Both of these will tend to create impressions in the jury. I have no direct evidence on that so far, but only my personal reactions, what would I think if I were a juror? But I could not be a juror in this case, I know far too much.

      My impressions of Chaiken are new and fresh, based on observing him give an opening statement twice. I already know his arguments from the pleadings, but I would have found him difficult to follow without that knowledge.

      In any case, welcome to CFC. Do not, however, expect that I will stop giving my impressions of the parties and attorneys. This is human interest.

  6. Abd,
    Thanks for attending and reporting. It’s nice to get some sort of window into the proceedings. Besides the events trial (clearly), I’m curious who else might be there in the gallery with you– large/small numbers? Any press? (Which press?) Basically, I was wondering if the trial has shown up on anyone’s “radar screen” besides just the two sides and their lawyers.

    Thanks for your time and effort!

    1. This afternoon, I noticed a woman sitting in the gallery. I asked her why she was there. She is Press, for Law360, which has written about the case twice. She’s not able to be there much. She gave me her card. We may be in contact. No “mainstream media,” AFAIK. She said that was normal, even for a $100 million lawsuit.

      Today, they brought in a larger panel, 60. One was stricken before the jurors were brought in. They ended up seating 13. (federal court rules allow 6-12 jurors, but apparently, if heard Altonaga correct, they can decide later how large the jury that actually deliberates is. There is a good chance they lose one or more during the process. But now they are very likely to complete.

      Then we heard the opening statements. Both Rossi and IH revised their openings substantially from the first pass. Then the 3rd party defendants presented. Chaiken (Rossi) speaks fast in bursts. He also had a huge graphic to present, and wrote on it. His writing was sloppy and mostly unintelligible, not impressive. Core claim is that when IH received $50 million from Woodford, suddenly IH had no need for Rossi. I think the messy exhibit was intended to show that.

      Pace (IH) is engaging and a bit self-deprecating, which might be charming. Basic theme: fake customer, fake tests, pile of fakes and lies. Major focus on acts of deception, far less focus on technicalities compared to the pleadings. However, emphasis was also on the Entire Agreement clause of the License Agreement, targeted at Chaiken claims re Cherokee, and pointing out that when an agreement changes, it is properly put in writing (and that the Agreement explicitly requires that.)

      I’d rather wait to make any more substantial comments, I am hoping to be able to obtain transcripts, because my notes are primitive and my memory is quite fallible.

      1. I’m happy to hear the lawyers for IH are concentrating on the ;-
        “fake customer, fake tests, pile of fakes and lies. Major focus on acts of deception, far less focus on technicalities compared to the pleadings.”
        rather than the technicalities of whether or not the “Guaranteed Performance Test” complied strictly with the terms of the original schedule agreed to.
        To a soppy jury, the latter has the appearance of IH trying to weasel out of the agreement on a technicality, even though Mr. Rossi says he has complied with all the requirements and the test was a huge success, he says. And his ‘Expert Responsible for Verification’ proves it’s even far better than it was supposed to be, he says.
        This is the argument Rossi has been continually making on his comical blog, via his well trained and obedient sock puppets.
        What a joke!
        And he refers to and criticises the ventriloquist of IH at the same time as he is speaking the words for his puppets on his silly blog, and is probably still doing it by the looks, even though he says he will not contribute to it while the trial is in motion. Yeah right!

        The claimed test, whether it be according to the agreement or not, is by Rossi’s own description, a GUARANTEED PERFORMANCE test.
        How can any test conducted under the circumstances which have come to light by way of the court depositions for the case.
        As you say, they clearly show a “fake customer, fake tests, pile of fakes and lies” and from start to finish, one continual act of intentional deception. Not just a matter of unintentional misleading. The documents lodged show the misleading was long standing and carefully cultivated by ongoing actions and words.

        Since this is to be decided on by a jury, this is the aspect which needs to be driven home every day of the trial to avoid the jury being persuaded by Rossi’s claims that he has done everything asked of him. He has not.
        Had he made known the fact that there was no involvement of any third party chemical company, or any third party at all for that matter, and Mr Rossi was the customer and produced no real product at all for the entire length of the test, that teh staff of teh supposed customer were hired by and came under teh direct orders of Mr Rossi, and that from all appearances, teh Expert Responsibel for Verification did nothing more than copy down performance data suppled top him by either Mr Rossi or his faithful lab assistant. There can be nothing at all guarantreed about any results arrived at by a test carried out under those conditions, whether the test schedule be in accordance with the original agreement or not.
        Since the test clearly fails to comply with the most basic requirement reflected in the title regarding “Guaranteed Performace’ the whole lot should be thrown out in the first day or two.
        A two or three week trial cannot determine anything more critical than that.

      2. Abd,
        Thanks for that– it’s good to hear there’s some press representation, i.e., you and the law360 woman. Maybe as the case goes on there will develop more general interest and the gallery will fill with more attendees. 5 weeks is a long time, after all.

        I’m enjoying your broad commentary– observations, opinions, incidental things. I’m not too concerned about transcript level details– although it is certainly appreciated, now and then; after 5-weeks of trial the jury will be buried in detail, but it’s going to be hard to tell in the broad scheme of things where the case really stands.

        I read somewhere once {and it goes something like}: trials are all about forests, trees and weeds. Most of the time is spent among the weeds, but the verdict ultimately comes from the view of the forest canopy that the jury assembles within its own mind’s eye.

        So I, for one, really appreciate your comments and observations (whether they are “substantial” or not)!

        Thanks, WaltC

        1. Thanks. There is new material being used, see the recent IH witnesses document. That is really a set of depositions with annotations. Not just Cassarino, but others. Chaiken alleged new material not seen before. Readers should realize that an enormous volume of material was disclosed in Discovery, most of which the public has not seen. I am hoping to obtain transcripts. If I can’t I might be able to handwrite from a court terminal. I haven’t seen that yet, but there is supposed to be access in the courthouse.

    1. Abd,

      first, thank you for your time invested in being there at the trial.

      second, given that you updated the existing blog entry, may I suggest you consider an alternative manner of updating your avid followers. As a first thought, create new blog posts titled by the date of entry/creation . . . we have about five weeks, or upwards of +35 different entries to keep abreast of.

      Of course, it is your choice . . . you are the one we are all indebted to.

      1. Excellent suggestion. I’m considering the best way to do it. After the mistrial, it all started over, and today was the first day of the trial before the reconstituted jury. Blog posts are already dated and presented in that order, latest first. I will create a new category for trial reports, and will title each of them with “RvD Trial Day [number]” starting with 1 for today, since the first two days ended up moot, and perhaps adding a few words about the day’s activities. The trial is in recess until next Wednesday. I may issue other blog posts on various topics.

        When I update a blog post, I create an anchor at the top of the update, and make a comment giving a link to that anchor. This will show up in recent comments on the blog home page. I will be taking other steps to improve access to the material.

        Meanwhile, I committed to coming here when I had received funding adequate to cover two weeks. I arrived on Sunday, June 25, to be ready for trial start the 26th. I learned before leaving the trial would not start until the 28th. Altonaga today said that the trial is expected to end the week of July 24. That would be on or before July 28. I need to pay for up to 21 more days of housing, at about $60 per day. So … while I do have some informal commitments that might possibly cover this, it would be an assurance if the GoFundMe campaign gets more support. As well, aside from any actual contributions, telling others about this blog, and about the fundraising effort, can really help. Thanks!

        1. If you go check out heat exchanger window and and
          any clues to the supposed missing burnt tree outside the window.
          Talking again about heat exchanger on LF again.
          Would be great if you found a worker or security guard
          that was at sight.Like looking for needle in haystack.
          I have been listening to a book cd called night school.
          It is about a soldier selling missing Davey Crocket missiles devices
          to terrorists.Investigaters have no leads until they interview a
          soldier that had contact with another soldier that told him
          he joined the army because his father told him Davey Crocket
          storys.That lead led them to to the soldier that was going
          to sell them for 100 million.All fiction but anything is possible.

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