Transcript of Trial Proceedings (2017-06-15)

Synopsis

Day four of Desiree Capuano's testimony, on cross-examination by lawyer Tony Lagemaat.

In this day of testimony, Desiree:

admitted that she "had full control over visitation and determining that visitation" p2l29-30;
Editor's Note: This admission directly contradicts Desiree's prior and later statements that she had to communicate with me under court order, to arrange visitation.
continued to falsely claim she was the author of emails to me which were actually written by her boyfriend of the time, and which she actually had no prior knowledge of p2l42-p3l1;
Editor's Note: This is significant because if the given conversation was actually occurring between me and a third party, then Desiree could not claim it contributed to her fear for safety and it would have no relevance to the trial. Myhre and Lagemaat knew Desiree had not written the emails in question, but Myhre advised her not to admit that because it could result in all of the emails being exlcuded.
continued to falsely claim there were significant periods of time when she did not respond to my emails at all p5l9-p6l3;
continued to falsely claim she did not publish the pictures from her phone on the internet p13l14-24, but moments later she admitted that at some point all of the information was, actually, public p13l30-34;
falsely claimed she did not know I owned firearms prior to the ones I had purchased in Canada and brought back to the US in 2016 p14l2-7, however she later admitted to knowing I possessed guns when I was living in Arizona p50l4-16, and in her police interviews she repeatedly claimed she knew about me owning and possessing firearms when I lived in Arizona 2016-7-13 RCMP interview entry 298-314;
falsely claimed that during the time she was absent from mine and Gabriel's lives she had filed a police report against me for kidnapping Gabriel p15l45-p16l2, but then she subsequently claimed she did not file a kidnapping report p16l17-21;
falsely claimed she did not have my contact information during the time she was absent from mine and Gabriel's lives, and that I was the one that always contacted her p25l28-31, however she admitted in her RCMP interview that her mother had been to my home in Phoenix 2016-07-13 RCMP interview entry 200, and that the only way I had of reaching her was by leaving a message with her mother 2016-07-13 RCMP interview entry 290-292;
admitted that in 2012 she accepted Prop-200 in order to have her drug possession charge dismissed, thereby admitting she had a drug problem p29l18-29;

Editor's Note: Prop-200 was created to help people with drug problems rather than punishing them. In order to be elligible for Prop-200 you have to admit to being guilty of the charge and to having a drug problem.

This is extremely important because one of the things Desiree insisted in the news media that I was lying about was that she is a drug addict. So, here, on the witness stand she is admitting that she is as drug addict.
admitted that she had worked as a stripper p34l34-37;
Editor's Note: This is significant because Desiree insisted in the news media that my claim that she used to be a stripper was a lie. But now, on the witness stand, she had to admit it was actually true because she knew I had proof.
admitted she had defrauded the public with her GoFundMe campaign p41l28-p42l4;
admitted that on at least one occasion she was arrested under a fake name in order to deceive the police and the criminal court p51l20-30;
admitted that in one of her RCMP interviews she was laughing about punching herself in the stomach to try to force a miscarriage of our son when she was five months pregnant p70l8-10.

Leading up to the trial, I expressed to Lagemaat the importance of playing the RCMP interview where Desiree was laughing and joking with them. He agreed it is critical for the jury to hear that because it showed that she really didn't take any of this seriously, that it was all just a big joke to her. But then, at the trial, Lagemaat refused to confront her with that recording. When he finished his cross-examination, I told the judge about the recording. Both the judge and Myhre agreed that it seemed like something the jury should hear, and the judge directed Lagemaat to question Desiree on it and, if necessary, to play segments of the recording p53l2-p66l24.

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27178

Vancouver Registry

In the Supreme Court of British Columbia

(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES AND JURY)

Vancouver, B.C.

June 15, 2017

REGINA

v.

PATRICK HENRY FOX

PROCEEDINGS AT TRIAL

BAN ON PUBLICATION - INHERENT JURISDICTION

J.C. WordAssist Ltd. (Vancouver)

Suite 614 - 808 Nelson Street, Vancouver, B.C. V6Z 2H2

Phone 604-669-6550

27178

Vancouver Registry

In the Supreme Court of British Columbia

(BEFORE THE HONOURABLE MADAM JUSTICE HOLMES AND JURY)

Vancouver, B.C.

June 15, 2017

REGINA

v.

PATRICK HENRY FOX

PROCEEDINGS AT TRIAL

BAN ON PUBLICATION - INHERENT JURISDICTION

Crown Counsel: Mark Myhre

Appearing on his own behalf: Patrick Fox

Defence Counsel: Anthony J. Lagemaat
Manroop Chatha, A/S

J.C. WordAssist Ltd. (Vancouver)

Suite 614 - 808 Nelson Street, Vancouver, B.C. V6Z 2H2

Phone 604-669-6550

INDEX

WITNESSES FOR THE CROWN
- DESIREE CAPUANO

EXHIBITS

EXHIBIT 3: Printout of email chain from Patrick Fox to Desiree Capuano dated 01/14/2015, subject line "Your loving home and parental teaching and guidance"
EXHIBIT 4: Printout of email from Desiree Capuano to Patrick Fox dated 04/20/2015, subject line "Gabriel summer visitation 2015"
EXHIBIT 5: Document titled "Desiree Capuano" containing printout of emails

RULINGS

Vancouver, B.C.

June 15, 2017

(EXCERPT FROM PROCEEDINGS)

(JURY OUT)

DESIREE CAPUANO

a witness called for the Crown, continuing.

Cross-examination of Desiree by Lagemaat

Clerk:

In the Supreme Court of British Columbia, at Vancouver, this 15th day of June, 2017, recalling the matter of Her Majesty the Queen against Patrick Henry Fox, My Lady.

Myhre:

We're ready, My Lady.

Judge:

All right. Can we have the jury, please.

DESIREE CAPUANO

a witness called for the Crown, recalled, warned.

Clerk:

I remind you, Ms. Capuano, that you're still under affirmation.

Capuano:

Yes, ma'am.

(JURY IN)

Lagemaat:

I'll be referring now to -- and I'm sure we've all lost track of what page we're on in the book, and I don't have page numbers, so it's called -- the email chain is called "Re G. summer visit 2015". I believe it's 13 pages in from the back. And this was also a fairly lengthy chain, seven pages. So if we could number the pages 1 to 7, please.

Clerk:

Sorry, where is it starting?

Lagemaat:

It's starting on --

Judge:

Can I show you, Madam Registrar?

Lagemaat:

Yes, "Re summer visit".

Judge:

It's this one. It's this one, and that would be page 1.

Clerk:

And seven in you wanted it?

Judge:

You said seven?

Lagemaat:

Yes. Yes, My Lady, seven pages.

CROSS-EXAMINATION BY MR. LAGEMAAT, CONTINUING:

Lagemaat:

And again, this -- this email chain was referred to in my -- in the Crown's book of exhibits, and we're going to go a little bit further in time in the chain. And I'll direct you to page 3 of 7 at the bottom. And what -- Ms. Capuano, you can confirm for me, this -- this email chain is largely about confirming a trial itinerary for -- and this is what you characterized in direct evidence, defining the term "itinerary", and you're basically arguing back and forth about itinerary for Gabriel going to visit Patrick; is that correct?

Capuano:

Yes.

Lagemaat:

In this chain. Hence the title.

So going a little bit further than we went in direct, and I'll go to the bottom of page 3, Desiree Capuano wrote, April 26th -- I'm assuming May 4th -- you've copy and pasted into there where you have previously asked him for an itinerary; is that correct, Ms. Capuano?

Capuano:

Yes.

Lagemaat:

Okay. And then you've put in a dictionary definition, turning the page to page 4 of 7 at the top. It's a continuation of that email. And you've put in a dictionary definition of "full" and "all" --

Capuano:

Yes.

Lagemaat:

-- correct? And again, that -- you didn't think he -- you understood he knows what "full" and "all" means; correct?

Capuano:

Well, according to this conversation back and forth, I was just trying to get him to see that what I wanted was the travel plans for my son.

Lagemaat:

I suggest you were just doing what you've done in previous emails and just arguing.

Capuano:

I had full control over visitation and determining that visitation.

Lagemaat should have crossed Capuano on this. She is now, finally admitting that she had complete control over visitation - which completely contradicts all of her testimony about having to maintain communication, under court order, and to provide "reasonable right of visitation" TR 2017-06-13 p38l7-9; p67l15-18; TR 2017-06-14 p5l16-18; p40l37-41.

But even after this point, after admitting she actually had "full control over visitation", she later continues to falsely claim, under oath, that she was required under court order to allow visitation and to communicate with me to arrange that visitation TR 2017-06-15 p4l31-36, p4l40-42; p6l5-9; p37l3-4; p37l34-36; p38l1-4.

You see? Capuano doesn't care about truth and she doesn't care about committing perjury. She'll just say whatever fits her argument from one moment to the next, even if it completely contradicts what she said five minutes ago!

After the website went up, the attacks, the reference to shooting, I was still offering to send Gabriel to him.

Lagemaat should have crossed Capuano on her choice of wording here. By saying she was still "offering" to send Gabriel, shows that what she's really interested in is control. As long as she has complete control over me she's alright with allowing visits, but as soon as I don't do exactly what she wants then she will refuse visitation.

This is demonstrated in some of the email threads, where Capuano imposed completely unnecessary and arbitrary requirements, and after I jumped through all the hoops she demanded, she then added new requirements that she hadn't mentioned previously for example, email dated 2015-05-06, and said if I didn't meet those new, additional requirements she would not allow Gabriel to visit. In this email thread, Capuano also repeatedly flip-flopped between saying Gabriel could fly only on two specific dates, then saying he could fly between those dates, then reverted to saying he could only fly on specific dates again email dated 2015-05-04. And, she adamantly refused to provide any explanation for any of the requirements she was imposing.

And finally, you will notice, that thread started with me being polite and respectful, and it was Capuano who started with the insults and antagonism email dated 2015-04-26. And, you will notice Capuano expected me to purchase the plane ticket, provide her proof of that, before she would approve it.

All I wanted were travel plans. And the fact that it took two weeks to get a plane ticket was very frustrating. I tried many different ways to tell him what I wanted were travel plans.

Lagemaat:

Do you know why it took two weeks?

Capuano:

Because he kept saying that what I was asking for he didn't understand, although I referred to it in the same way he had referred to it in previous emails.

Lagemaat should have confronted Capuano with the emails from that thread, from 2015-04-20 through 2015-05-06 to show that I repeatedly asked her to be more specific about what level of detail she wanted and the scope of the "full itinerary" she was demanding (because "itinerary" can be very broad) email thread "Gabriel summer visitation 2015". And that, finally, on 2015-05-06 she stated she just wanted the flight information (or flight itinerary, not the "full" itinerary she had been insisting on up to that point). He should have asked her why she didn't just state that from the beginning like I had been asking her to.

The reason I was insisting on clarity from Capuano was because I have had so many problems in the past with her being overly vague, then later using that vagueness to change plans or requirements. The fact that she adamantly refused to clarify just made her actions that much more suspicious.

Capuano said that she was using "itinerary" in the same way I had in previous emails, however when I used it it was specifically in the context of flight information so it was limited in scope to the flights. When Capuano used it she did not limit the scope. Moreover, she said she required the "full itinerary" for the "entire trip", which suggested a much larger scope.

This would have been significant to show the jury because the Crown and Capuano had presented these emails as me being the one being difficult and confrontational, but in reality there was no reason Capuano couldn't have just said she only required the flight information. But again, you will notice, that thread started with me being polite and respectful, and it was Capuano who started being insulting and deliberately provoking me email dated 2015-04-26.

Lagemaat also should have pointed out that Capuano insisted on having the "itinerary" BEFORE she would "approve" it. That meant I had to buy the tickets before I even knew whether she would approve it. That was another reason I wanted her to be clear and specific in what she was demanding.

Lagemaat:

Going over to page 2 of 7, and about halfway up the page, on Thursday, May 7th, 2015, Desiree Capuano wrote -- and can you read -- and you wrote two in a row again here. Can you read those in, please? It starts with "Would you like me to forward". Is that your reply, Ms. Capuano?

Capuano:

Yes.

Affidavit of Patrick Fox, 2019-01-29, ¶6

Capuano falsely testified she wrote specific emails, upon which the allegations are based, but the emails were actually written by a third party TR 2017-06-14 p20l10-11; p25l31-33; p28l24-25; p31l28-29; p33l4-5; p34l1-3; p34l33-35; p36l31-38; p37l2-3; p37l38-40; p40l19-21; p42l19-21; p45l34-36; p46l29-32; p46l40-43; p49l44-46; p65l47-p66l3; TR 2017-06-15 p2l47-p3l1; p4l5-6.

In addition to the above emails in which Lagemaat directly and explicitly asked Capuano whether she wrote them and she explicitly and directly testified she did, in the following instances, Lagemaat either failed to directly ask Capuano whether she wrote the emails in question or he asked her and she failed to directly state she did write them. Nevertheless, Capuano's implication was that she had written the emails in question TR 2017-06-14 p20l39-42 (re p20l46-p21l3); p21l10-12 (re p21l15-20); p23l13-16 (re p23l19-33); p39l23-28 (re p39l33-p40l17); p64l38-41 (re p64l44-p65l4).

I told Lagemaat, prior to trial, that certain email conversations which the Crown was relying on were not actually composed by Capuano. Lagemaat replied he was aware of that; that it was obvious to him by the differences in writing style, grammar, vocabulary, brevity.

Myhre Instructs Capuano to Lie About Writing the Messages

Near the end of Lagemaat's cross-examination, Lagemaat told me Myhre had told him that before the start of the trial Capuano had told Myhre that she did not write some of the emails in the Crown's book of evidence which purported to be from her. But Myhre and Lagemaat knowingly ignored that very relevant point and proceeded as though Capuano had written the emails anyway.

It would seem to me, that Myhre must have told Capuano to falsely testify she had written the emails in question. Some of the emails reflected very poorly on Capuano, so it is unlikely she would claim to have written them unless she was advised to by the Crown. And if Capuano had admitted, on the witness stand, that she did not write the given messages, that would mean I was communicating with someone else (not her), which would mean those message threads would not be admissible/relevant to the criminal harassment charge - that would be why Myhre would tell Capuano to falsely claim she had written them.

By Lagemaat's and Myhre's own admissions they knew Capuano did not write certain specific emails which both Lagemaat and Myhre had offered into evidence as being emails written by Capuano. Neither Lagemaat nor Myhre took steps to prevent Capuano from committing perjury by testifying that she wrote the emails; nor did they notify the court or the jury that they had reason to believe Capuano was committing perjury.

When Myhre first questioned Capuano about the email thread with the subject "Gabriel's summer visitation 2015" he asked her whether she "participated in" the email string, rather than asking her whether she wrote any of the specific emails in the thread or whether my responses were to emails actually written by her. I believe Myhre phrased the question in that way because he knew most of the emails in that thread had not been written by Capuano.

Lagemaat:

Okay. Could you read those both in, please? There's two in a row.

Capuano:

[As read in]:

Would you like me to forward you the email thread where I purchased a ticket and it interferes with your work schedule so you denied it? Or the one where I told you the flights were cheaper on a different day and you responded that you didn't care about my financial troubles and it wasn't your fault that I was a white trash person incapable of budgeting my money, and again denied it? Oh, but you probably have them up on your website, so you can just go read it there. Actually, you interfered with almost every visitation I have with Gabriel, from pulling stupid things like refusing to put him on a plane, calling the airlines and changing the plane tickets yourself, filing for a restraining order the day prior to visitation, sending him for a week with nothing but the clothes on his back and a box of Jewish crackers. You and he decided that he would not participate in any event over Christmas break, including eating dinner, because he was Jewish and it was against his religion. You sure as hell never permitted me to have him for a visitation without return plans solidified. I believe I have been extremely accommodating to you, given the hardships you caused me while you had partial custody. Where's your argument again?

Lagemaat:

Why did you ask at the end, "Where's your argument again?" Is that asking him for a reply?

Capuano:

Because he's telling me in his -- that he's not agreeing to the terms of visitation, meaning that he was requiring that I drive two hours during the work week from Tucson to Phoenix to put him on a plane, and he didn't care that I had to work.

Affidavit of Patrick Fox, 2019-01-29, ¶45

Capuano falsely testified she believed my emails showed I was "requiring she drive two hours during the work week from Tucson to Phoenix to put Gabriel on a plane" for his visit with me.

However, Capuano wasn't even living in Tucson at that point. She was still living in South Phoenix, near the airport. And even if she were to now claim that she had already moved to Tucson prior to that point, the fact remains there was no mention of her moving to Tucson until I brought it up, after Gabriel was already in Vancouver - at which point Capuano admitted to moving while Gabriel was with me emails dated 2015-07-01; 2015-07-06.

Moreover, Capuano testified that she continued to work at Apollo after moving to Tucson, and that she commuted from Tucson to Phoenix for work - which would mean she was making the two hour drive on the weekdays anyway, and that by scheduling the flight on a weekend, as she was requesting, would have required her to make an otherwise unnecessary trip to Phoenix, which would have been much less convenient for her. And, if Capuano had actually moved from Phoenix to Tucson prior to Gabriel's flight then why wouldn't she have simply suggested I get Gabriel a flight from Tucson, rather than from Phoenix?

Moreover, if Capuano had actually already moved from Phoenix to Tucson prior to me making Gabriel's travel arrangements, then it is clear from our emails around that time that she was very deliberately withholding that information from me and I had no way of knowing she had moved to another city. Therefore, how could Capuano possibly hold me responsible for requiring she drive two hours from Tucson to Phoenix if she was deliberately misleading me to believe she was still living in Phoenix?

Also, in the email conversation in question, I repeatedly insisted Capuano did not have to transport Gabriel to the airport personally. I repeatedly stated I would arrange for a car (e.g. a taxi) to pick Gabriel up. Capuano consistently ignored that proposal, as though I had never stated it - but it's very clearly stated in the email conversation emails dated 2015-04-26; 2015-05-05; 2015-05-06.

Both Lagemaat and Myhre were very familiar with the email conversation in question. In fact, it is included in part, in both parties' books of exhibits. They must have known that either Capuano had not yet moved to Tucson, or had moved to Tucson but had expressly withheld that information from me (so I couldn't have known at that time in question, that she no longer lived in Phoenix). But either way, they must have known that her testimony that I was requiring her to drive two hours during the work week from Tucson to Phoenix was perjurious because:

either she wasn't living in Tucson at that time and was still living in Phoenix, a mere few miles from the airport; or
she withheld from me that she had moved to Tucson, so due to her own deliberate actions, I would have been under the impression she was still living a few minutes drive from the Phoenix airport.

However, both Mr. Lagemaat and Mr. Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.

Lagemaat:

Did you know if he was working at this time?

Capuano:

I don't know. I assume so.

Lagemaat:

Going over to page 1 of 7, and about halfway up the page, May 11th, 2015 -- and again, this is again May 11, Desiree Capuano wrote [as read in]:

See, Richard, it doesn't matter.

Is that your response, Ms. Capuano?

Capuano:

Yes.

Affidavit of Patrick Fox, 2019-01-29, ¶6

Myhre Instructs Capuano to Lie About Writing the Messages

Lagemaat:

Could you read that in, please?

Capuano:

See, Richard, it doesn't matter what I say or how I say it. You're bound and determined to argue everything I say and you adamantly refuse to even attempt to understand what I'm talking about. So tell me why I should try to defend myself against a person like that. It's a futile effort and I have better things to do. You nitpick like a little old lady. Oh, my God, are you going to say that I'm racist against little old ladies?

Lagemaat:

And up at the top of the page, "and you're incapable", is that your reply, Ms. Capuano?

Capuano:

Yes.

Lagemaat:

Can you read that in, please?

Capuano:

And you're incapable of having a conversation without a dictionary, encyclopedia, or case law book for reference.

Lagemaat:

And this, again, was at a time when you say you were in fear of Mr. Fox?

Capuano:

Yes, and I still had to determine visitation for my child.

Lagemaat:

Pardon --

Capuano:

Was still required to put him on a plane to go see his father. So no matter how scared I was, I still had to communicate with him.

Affidavit of Patrick Fox, 2019-01-29, ¶4

Capuano falsely testified, repeatedly, she continued to engage me in communication and to allow our son to visit me in Vancouver because she was required to under order of the family court TR 2017-06-13 p38l7-9; p67l15-18; TR 2017-06-14 p5l16-18; p40l37-41; TR 2017-06-15 p4l31-36, p4l40-42; p6l5-9; p37l3-4; p37l34-36; p38l1-4.

However, Capuano admitted in her testimony, she "had full control over visitation and determining that visitation" TR 2017-06-15 p2l29-30.

The minute entries from the 2014-07-21 family court hearing show I voluntarily waived all parental rights, and Capuano was, therefore, no longer required to allow ANY visitation or communication between me and Gabriel LASC minute entry.

After admitting she had "full control over visitation" Capuano continued to testify she was required, under court order, to communicate with me and to allow Gabriel to visit me.

I had discussed Capuano's false claims that she was required, under court order, to communicate with me and to allow Gabriel to visit me, with both Lagemaat and Myhre prior to trial because Capuano had also falsely stated such in her RCMP interviews. Also, Capuano stated in her RCMP interviews that I had waived all parental rights in the family court order in July 2014, giving her sole authority in all matters pertaining to Gabriel from that point forward RCMP interviews, dated 2015-07-19, ¶14; 2016-07-13, ¶762. Therefore, Lagemaat and Myhre knew, at the time of Capuano's testimony, that her repeated claim of being required, under court order, to communicate with me and to allow Gabriel to visit was false.

Lagemaat failed or refused to confront or to cross-examine Capuano with the proof that her testimony was false. Both Lagemaat and Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.

Lagemaat:

Well, if he didn't send a ticket --

Capuano:

Then he wasn't getting on the plane.

Lagemaat:

Exactly.

Capuano:

Yeah. And then he would take me back to court and say that I prevented visitation. I knew what I was facing.

Affidavit of Patrick Fox, 2019-01-29, ¶4

However, Capuano admitted in her testimony, she "had full control over visitation and determining that visitation" TR 2017-06-15 p2l29-30.

After admitting she had "full control over visitation" Capuano continued to testify she was required, under court order, to communicate with me and to allow Gabriel to visit me.

Lagemaat:

Did you have to go out of your way that far to get him to send you the plane tickets --

Capuano:

Yes.

Lagemaat:

-- compared -- compared to just leaving it?

Capuano:

Yes. The only time I got him to send me the plane ticket is when I said, "'Stupid fucking cunt' does not look like an itinerary. Send me the itinerary."

Lagemaat should have crossed Capuano on whether I finally provided the flight information because of what she said email dated 2015-05-06, or because she finally stated completely and clearly that what she meant by "full itinerary" was only the flight information email dated 2015-05-06.

In her email dated 2015-05-06 1:56:20pm, Capuano finally stated she only "needed" the flight information - which is completely contrary to her earlier, repeated demands for the "full itinerary". And up to that point Capuano consistently refused to clarify or narrow the scope of what she meant by "full itinerary". Lagemaat should have pointed out that at any time in that email thread she could have simply told me she just wanted the "flight itinerary". He should have pointed out that SHE was the one who had been refusing to cooperate, not me.

Lagemaat:

I -- I suggest, Ms. Capuano, this is just like every other email we went through where it came a point where you did not have to engage but you did. And in this case there's one instance again where you send two in a row.

Capuano:

In 2014, the beginning of 2014 when the website went up, I was not responding. It was not till the end of 2014 that I started going back and forth with him on

Affidavit of Patrick Fox, 2019-01-29, ¶22

Capuano falsely testified there were durations of time when she had ignored my emails and didn't respond TR 2017-06-13 p10l17-19; TR 2017-06-14 p51l19-28; p65l21-26; p66l22-27; p66l32-34; TR 2017-06-15 p5l9-12; p5l41-47; p6l24; .

However, the email history and, in particular, the main email page of the website (included at Tab 8 of the Crown's book of exhibits) show there was never a period when Capuano ignored my emails and didn't respond main email page of the Desiree Capuano website.

In March and April 2014 Capuano did not respond to my emails but, by her own admission in her testimony, it was not because she was "ignoring" them or "trying a different tactic", it was because she had just discovered I had published all of her emails and she "did not want to give [me] anything else that [I] could use against her" TR 2017-06-12 p67l32-39.

I believe that would seem to be an acknowledgment by Capuano that she knew her conduct in her emails was inappropriate and offensive.

[indiscernible], as you said yesterday, bickering back and forth, trading witty remarks.

In the fall of 2014 -- in the winter, actually, in December, is when one of those two parties brought up shooting the other one. I don't care what reference is around that, I don't care how many times he tells me not to be threatened, the person doing the attacking is the person saying that they think about shooting the other person. At that point every other threat has a different meaning, everything else becomes important.

Lagemaat should have pursued this further. I never said I "thought about shooting Capuano" - that is her, adding more to the facts than what was real. Lagemaat should have asked her where and when I ever said anything about "thinking about shooting her". She would have referred to the email from 2015-01-11 email dated 2015-01-11. Then Lagemaat should have reviewed the email with her and pointed out that, if anything, it was Gabriel who had thought about shooting her - not me.

Lagemaat also should have asked her if she believes that simply making a reference to the existence of something, or to an event which occurred, is the same as making a threat. If she said yes, then he should have asked her if telling some one you have a car is the same as telling them you intend to run them over. The point of this would have been to show the jury that Capuano's claims of fearing me owning guns was irrational - just because a person has the means or the capability of harming another person doesn't mean they are likely to do so.

That doesn't mean that I'm going to stop interacting with him the way that I had been. I'm not going to cower and cry and beg and plead for him to stop.

Lagemaat:

So instead of --

Capuano:

I'm just going to continue in the same thing that I had been.

Lagemaat:

Would --

Capuano:

And in the background I'm going to take steps to protect myself and my family.

Lagemaat:

Which is insulting him, provoking him, insulting his family.

Capuano:

I'm just trading back and forth the way that I had been before he said he was going to shoot me.

Lagemaat:

Exactly. You're trading back and forth.

Capuano:

But that doesn't mean I'm not taking steps on my own to also protect myself and my family.

Lagemaat:

And -- and you said yesterday, I -- I asked you several times, "Why didn't you just stop?" and you gave a period of years where you had just not replied and it hadn't -- it kept on going. What were those years again where you said? And I have it in my notes. I'm wondering if you recall.

Capuano:

It was between 2012, 2013, and beginning of 2014.

Affidavit of Patrick Fox, 2019-01-29, ¶22

I believe that would seem to be an acknowledgment by Capuano that she knew her conduct in her emails was inappropriate and offensive.

Most of the responses, if I had responses, were very civilized in my attempt to be civilized and respectful.

Lagemaat:

So you were responding. You said yesterday --

Capuano:

To some -- I had to.

Lagemaat:

Okay.

Capuano:

We had a child. We were in a custody battle.

Lagemaat:

And --

Capuano:

There was no choice of me not responding to it.

Affidavit of Patrick Fox, 2019-01-29, ¶4

However, Capuano admitted in her testimony, she "had full control over visitation and determining that visitation" TR 2017-06-15 p2l29-30.

After admitting she had "full control over visitation" Capuano continued to testify she was required, under court order, to communicate with me and to allow Gabriel to visit me.

Lagemaat:

And would it be a correct characterization to say that communications during that time were more limited to the family court issues about --

Capuano:

Absolutely.

Lagemaat:

-- about visitation, about what went back and forth with the child?

Capuano:

From my respect, yes.

Lagemaat:

Mm-hmm.

Capuano:

But that doesn't mean that his insults were not there.

Lagemaat:

Was there -- was there insults and threats during that period?

Capuano:

Absolutely.

Lagemaat:

Thank you.

Capuano:

Yes, there were, and I did not respond to them.

Affidavit of Patrick Fox, 2019-01-29, ¶46

Capuano falsely testified that from 2012 through early 2014 I had threatened her repeatedly.

However, the emails and Capuano's own admissions in the Sahuarita Police reports, the Phoenix Police report, the order of protection hearing and declaration, and the RCMP reports from April through July 2015 GO 2015-15750; GO 2015-32597, show that I had never, not once, threatened Capuano with anything other than what I had every legal right to do (e.g. pursuing legal action, publishing proof of the bad things she has done).

And, I believe it is critical to this point, that a threat to engage in some perfectly legal course of action against the other party, for example, seeking redress in civil or family court, is not "threatening conduct" as envisioned by the criminal harassment laws.

Both Lagemaat and Myhre were well aware of the emails and the numerous police reports, court documents, and hearings in which Capuano admitted I had never threatened her with anything other than legal action and to publicly expose what I considered to be her offensive conduct - both of which are perfectly legal courses of action. Therefore, both Lagemaat and Myhre knew at the time of Capuano's testimony that her statement was false. However, neither Lagemaat nor Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.

Lagemaat:

Next email in the chain is titled "Values" and this was again May 11th, 2015. Do you -- do you have any idea what it was about May 11th that you --

Capuano:

Yes. We were getting ready for visitation travel.

Lagemaat:

Okay. This is a two-page chain. At the bottom, the last email, Patrick writes to you [as read in]:

Desiree, I believe this epitomizes the difference between you and I. In December 2013, G. gave me a coffee mug that he picked up at the airport on the way here. I've since used that mug every day, every single time I have coffee at home, which is at least once a day.

And did you reply to that email?

Capuano:

Yes.

Lagemaat:

And that's your reply above, that May 11th at 10:50?

Capuano:

Yes.

Lagemaat:

And can you read that in?

Capuano:

[As read in]:

You would not have the opportunity --

Lagemaat:

No, sorry, Ms. Capuano --

Capuano:

Oh.

Are you saying that Gabriel being in this world means nothing?

Lagemaat:

Sorry, Ms. Capuano, it's -- it starts with "Ha". It's -- I'm on the second page --

Capuano:

Oh.

Lagemaat:

-- of that chain. I apologize. Second page.

Capuano:

Ha! I picked out your precious coffee mug that you use every day. Guess it's time to trash it now, huh?

Lagemaat:

So you got -- you took it upon yourself to point out that it wasn't actually from Gabriel, it was -- you picked it out?

Capuano:

I picked it out and bought it.

Lagemaat:

Right. And -- and why did you feel it's necessary to point that out to Mr. Fox, to hurt him?

Capuano:

There's information that he doesn't have, because he assumes that he knows everything that's going on at all times, and he doesn't.

Lagemaat:

So you -- you felt it necessary to point that out to show him he's wrong or to hurt him?

Capuano:

Well, he's saying that I have no values and don't respect anything that Gabriel gives me.

Lagemaat:

So yet --

Capuano:

So now he's saying that in comparison, he respects everything Gabriel gives him, but he didn't -- Gabriel didn't buy that or pick it out, I did.

Lagemaat:

But -- but in his email he's saying how special it is to him, he uses it every day, but you took it upon yourself -- you had to point out, "He didn't pick it out, I did. Ha!"

Capuano:

Why did he have to point out that I don't cherish the things that my son gives me?

Lagemaat:

Why start with "ha" exclamation mark?

Capuano:

Because it was ridiculous.

Lagemaat:

And then above that, he asks you, and I'll only read in the last paragraph, it's again arguing -- sniping back and forth [as read in]:

Can you list one thing you're [sic] done in your life to make the world a better place, either directly or indirectly?

Turning over to page 1 of 2, and -- and you say, this -- at May 11th at 11:08, at the very bottom, did you write that about the maple coffee?

Capuano:

Yeah.

Lagemaat:

And can you read that in, please?

Capuano:

[As read in]:

I finished the maple coffee he bought me. You don't have any facts at all.

Lagemaat:

And then two minutes later, above, again you sent two in a row, these aren't replies anymore -- did you write that email at 11:10, "Can you list"? Is that your --

Capuano:

Yes.

Lagemaat:

Can you read that, please, Ms. Capuano?

Capuano:

Can you list one thing you've done in your life to make the world a better place, either directly or indirectly? Yes, I gave birth to your son. Bam, that just happened.

Lagemaat:

What do you mean by "Bam, that just happened"?

Capuano:

It's proof that I've done something.

Lagemaat:

Isn't it proof that you've just won a little bit of an argument?

Capuano:

No, it's proof that I've done something good in my life.

Lagemaat:

So "that just happened" means that you gave birth.

Capuano:

That -- no, it means that I came up with something that I've done.

Lagemaat:

So you've won a little piece of this argument; correct? You're saying, "Bam, that just happened. I've won this little piece of this argument."

Capuano:

Sure.

Lagemaat:

Thank you.

Capuano:

You're welcome.

Lagemaat:

I suggest again that all these emails are a game, little pieces of winning and losing for both of you, back and forth. And in some cases such as this again, you don't even wait for a reply, you send another one with a "bam" at the end.

Capuano:

There's no game, but there is a game plan. And if there's any prize, it's my freedom.

Lagemaat should have pursued this further. Capuano is being melodramatic. He should have asked her what she meant by "the prize is her freedom". Was I in some way enslaving her? Keeping her from going about her business? Was I preventing her from doing anything? He should have asked her, if everything on the website is true then isn't she really being harmed by her own actions. And if anything on the website is false then point it out. If she hadn't done so many horrible things to so many people then there wouldn't be anything to write about on the website.

Capuano would have been unable to point out anything false on the website. Or, if she claimed anything specific was false then Lagemaat could have confronted her with the proof that it was actually true.

Lagemaat:

Next email, "Carrington College", and it's a two-page chain. And at the bottom, June 7th -- or 27th, 2015, Patrick wrote [as read in]:

Oh, I see now. So Apollo was -- is having serious financial problems and doing yet more layoffs. Is that what happened? Were you let go?

And he's talking about your position and potentially some problems at your employer. Would you agree that's the content of that email from him, the subject matter?

Capuano:

That he's trying to get information about where I work? Yes.

Lagemaat:

Mm-hmm. And then what did you reply at 8:17 p.m.? And it's just above there, Ms. Capuano.

Capuano:

My job is none of your business.

Lagemaat:

And then he replies again, insulting. And then you ask him a question up above, Desiree Capuano wrote. It says:

May you please confirm ...

Is that -- you sent that email, Ms. Capuano?

Capuano:

Yes.

Lagemaat:

Could you read that in, please?

Capuano:

May you please confirm which facility you are working at?

And I give him two addresses.

Lagemaat:

You -- you give two addresses.

Capuano:

Yes.

Lagemaat:

And then up above, he replies:

I shall verify that. Thank you.

And he --

Capuano:

Actually, I wrote that.

Lagemaat:

He -- oh, sorry, you wrote that. He says:

Jacobson Way.

So he confirms where he's employed.

Capuano:

Yes.

Lagemaat:

Why is it your job is none of his business but then you go on to ask him where his job is?

Capuano:

I want him to understand that it can work both ways. He's already contacted my employer. He already sent emails pretending to be me. He already created a LinkedIn account, he already created a Facebook account, he already said that he's going to destroy me, he already said he's going to do all of these things. I want him to know that there are risks to him too.

Lagemaat:

You want him to know that you can do the same thing. You're threatening here that you can do the same thing; correct?

Capuano:

But I never did it. That's the difference.

Lagemaat:

Well, it doesn't matter. You're threatening that you can do it and he's giving you the information you need to do it --

Capuano:

Yes.

Lagemaat:

-- correct? Thank you.

Capuano:

Yes.

Lagemaat:

Page -- next email chain. This is "G.'s adventure with the RCMP". And at the bottom, he sends you an email on June 30th, 2015, and I'm assuming there's been some kind of discussion about -- I'll go look back. I'm assuming there's been some kind of discussion about the authorities being called and he's saying about you making a frivolous claim. Is that Child Protection Services or --

Capuano:

It's not. I just asked for a home check.

Lagemaat:

Pardon me?

Capuano:

I asked for a home check.

Affidavit of Patrick Fox, 2019-01-29, ¶47

Capuano falsely testified when she contacted the RCMP on 2015-06-30 she had only "asked for a home check".

However, the RCMP report shows Capuano had actually, falsely told them she "hadn't heard from Gabriel since he'd been in Vancouver", and that "when she attempted to contact Gabriel's father, Richard Riess, she received responses from a man named Patrick Fox stating Riess does not exist, that Gabriel is with Fox and would be back in Arizona when he (Fox) 'said so'." Capuano deliberately misled the RCMP to believe Patrick Fox and Richard Riess were two different people; that she didn't know who Patrick Fox was; and that her 14 year old son was with a strange man in a foreign country RCMP Report 2015-29196, page 3.

Confronting Capuano on this would have been an excellent opportunity to show the jury that Capuano will make up outrageous lies, even to law enforcement, to get people to do what she wants and to abuse the justice system for her own pointless, petty purposes.

Both Lagemaat and Myhre knew of the RCMP report which was on the website and also included in the Crown's disclosure material. Therefore, they must have known Capuano was lying when she testified. However, neither Lagemaat nor Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was lying in her testimony.

Lagemaat:

Okay. And then your reply, up above, at 8:46 p.m., June 30th [as read in]:

Richard, when you said ...

Is that your reply?

Capuano:

Yes.

Lagemaat:

Could you read that in, please?

Capuano:

When you said, or would that have been too complicated for you to think of? I believe you meant to use the word "to". You really should use a dictionary. That sort of poor grammar, common against [sic] the lower echelon of society, makes it difficult for you -- to take you seriously. Not that anyone does anyway. As you well know, Gabriel's phone does not receive calls while in Canada. Again, nice try. I chose not only to pursue a wellness check this time and, as such, no frivolous claim exists. To the contrary, I actually had a very nice chat with the RCMP and they indicated that they would be keeping an eye on you. I thanked them for checking in on Gabriel for me. Have a nice day.

Lagemaat:

The second paragraph [as read in]:

I believe you meant to use the word "to". You really should use a dictionary. That sort of poor grammar, common amongst the lowest echelon of society, makes it difficult to take you seriously.

So again you're -- you're insulting his grammar skills?

Capuano:

He had no ID that said he was Richard Riess. My son is in a foreign country and he just told me he's not going to get a return ticket.

Lagemaat:

That's not what I asked you, Ms. Capuano.

Capuano:

And I'm --

Lagemaat:

I asked you --

Capuano:

-- being punished because I said a frivolous sentence, and that that gives him permission to do this, and that I'm saying it's okay because I insulted his use of the word "to". Are you saying that it's okay that he's done all of this?

Lagemaat should have crossed Capuano on what difference my name made. She had full control over visitation and she had sole legal and physical custody. She could have permitted Gabriel to travel anywhere in the world and stay with any person she chose, while he was there.

She claims that Gabriel was only allowed to be with his "father" whose name was "Richard Riess" but that's nonsense - that's a restriction she alone was imposing. She also claims that if I attempted to abscond with Gabriel there would be nothing she could do because I didn't have any ID that stated I was Richard Riess, but that's also nonsense because all she would have to do is inform the police that my legal name, at least according to my ID, is Patrick Fox. She's just a fucking idiot!

This could have shown the jury that Capuano was being irrational and melodramatic.

Also, I never told Capuano I wasn't going to get a return ticket for Gabriel - that's an assumption/inference she made.

Lagemaat:

Well, if you're so afraid and threatened and harassed, why do you have to harass --

Capuano:

Because I need my son back and I'm not going to back down.

Lagemaat:

And the last sentence:

Not that anyone does anyways.

And reading back, you're saying his grammar "makes it difficult to take you seriously. Not that anyone does anyways." I suggest you don't take this seriously, do you?

Capuano:

Oh, I absolutely do.

Lagemaat:

It doesn't seem to me you do. When you reply with all these insults, it doesn't appear you do.

Capuano:

All we're doing is looking at emails back and forth. That does not take into account the other activities that are happening.

Lagemaat:

Well, the --

Capuano:

They were a lot of other things happening at --

Lagemaat:

-- the -- the email --

Capuano:

-- this time besides emails.

Lagemaat:

Sorry, I apologize. Finish.

Capuano:

The emails were just a front. That's all they are. It's just a front.

Lagemaat:

The -- the emails are also the -- the entire relationship between you two is in the emails. There's -- you've said there was only three phone conversations. This is the relationship between the two of you, this is what we have.

Capuano:

There's also actions.

Lagemaat:

Moving on to the Crown's book of exhibits, Tab 3, the photo section. And we'll go to the second page, "Photo album, Desiree Capuano".

You said in direct evidence there was a photo of you on the website in your underwear.

Capuano:

No, he said that.

Lagemaat:

So there is no photo of you in your underwear on the website.

Capuano:

It's me in my bathrobe. I'm --

Lagemaat:

Or your bathrobe.

Capuano:

-- pretty sure that's what he's referring to.

Lagemaat:

And would that be --

Capuano:

Fourth page --

Lagemaat:

-- the red plaid bathrobe?

Capuano:

-- fifth row down --

Lagemaat:

Yes.

Capuano:

-- right-hand side. I didn't say that, he said that.

Lagemaat:

So there's nothing racy or unusual about that photo. You're fully dressed, you're fully garbed; correct?

Capuano:

He's the one that said it, not me. His direct quote was something along the lines of, "How does it feel knowing everybody in work has seen you in your underwear?"

Desiree is insisting she never said there were photos of her in her underwear on the website, that I am the one who said that. Hmm, interesting. In fact, Desiree DID claim this in her RCMP interview RCMP Interview, ¶648.

And as for her claim that I had said it, that's also false. I never said there were any pictures on the website, of her in her underwear. What I had said was "I hate to think of you sitting in a meeting wondering how many of your colleagues have seen pictures of you in your underwear." email, dated 2014-03-23 The subject of my statement was what she might be wondering while sitting in a meeting.

The way Desiree words it makes it sound as though I was suggesting I actually put pictures of her in her underwear on the website. But then, Desiree usually hears whatever she wants to hear, regardless of what was actually said.

Lagemaat:

Go back to -- or further in, "Photo album, Sage Capuano". And the second page, five rows down, is that Mr. Lauchner [phonetic] --

Capuano:

Yes. It's --

Lagemaat:

-- with Sage?

Capuano:

-- a BB gun.

Lagemaat:

It's a BB gun.

Capuano:

It's just a BB gun. It's not real.

Lagemaat:

How old was Sage at the time?

Capuano:

Seven; six, seven.

Lagemaat:

A BB gun is a real gun, it's just not a firearm.

Capuano:

Correct.

Lagemaat:

Correct. One -- one thing about these photos, and perhaps you can explain this -- you work in IT; correct?

Capuano:

Yes.

Lagemaat:

You said you didn't post these pictures on your Facebook; Facebook allowed, I'm assuming your friends, because it -- you allege it was through G.'s Facebook account, that Facebook allowed your friends into your photo album?

Capuano:

There's a -- there was a camera roll option in the pictures in Facebook.

Affidavit of Patrick Fox, 2019-01-29, ¶50

Capuano falsely testified I surreptitiously, without her knowledge or consent, took her private and personal photographs.

Capuano testified she had not "posted them to Facebook" and "they were just in the camera roll" TR 2017-06-13 p18l47-p19l1; p20l17-19; p22l15-17.

However, Facebook does not have a "camera roll" feature - that is a feature of Apple iCloud and Apple devices, which have absolutely nothing to do with Facebook. Nor does Facebook have a feature comparable to Apple's camera roll. Nevertheless, based on Capuano's testimony, she is saying she believed I used Gabriel's Facebook account, which she claims she believed was actually maintained by Gabriel, not by me, even though I had repeatedly informed her I was maintaining that account, to access pictures from her Facebook profile which were not publicly accessible. Capuano is claiming the photos were only accessible to her "trusted" Facebook friends - of which, I was not one.

And consider this, if you will, even if we pretend Facebook did have the camera roll feature Capuano's talking about, then what she's saying is she didn't post the pictures to Facebook, they were only in her cameral roll on Facebook, which means she posted them to Facebook! Capuano is such a horrible liar she actually loses track of her lies and contradicts herself within a single sentence.

However, Capuano's earlier testimony that originally ALL of her Facebook data was public and that at some point after the website was created she made it non-public (in February 2016) contradicts that TR 2017-06-15 p13l30-32, p13l39-40.

Lagemaat and Myhre were both present for all of Capuano's testimony. So they both must have heard her contradictory statements. Moreover, Capuano's false statements about Facebook's "camera roll" feature are easily proven by the simple fact that such a feature simply does not exist. Therefore, Lagemaat and Myhre both must have known that Capuano was perjuring herself when she testified. However, both Lagemaat and Myhre refused to inform the court or the jury that they had reason to believe Capuano had committed perjury.

Lagemaat:

So you selected that camera roll option, so people who were -- who could have access to your Facebook page could have access to your entire camera roll?

Capuano:

Yes. They were people that I knew, family.

Affidavit of Patrick Fox, 2019-01-29, ¶48

Capuano falsely testified that Facebook had something called a "camera roll" option, which gave her "friends" access to the photos she posted to her Facebook profile.

However, there is no such thing as a "camera roll" option in Facebook. Apple iCloud and Apple devices have something called a camera roll but that is completely different and separate from Facebook, which is where Capuano testified I surreptitiously obtained the photos from without her knowledge or consent.

The proof of this matter was self-evident. The fact that Capuano was referring to something which does not exist should have been sufficient proof for both Lagemaat and Myhre to know she was lying. However, neither Lagemaat nor Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.

Lagemaat:

And this at a time when you were concerned about your information being made public, you shared your camera roll on Facebook?

Capuano:

No, I'd already blocked it, but he had gotten these before I put up the privacy.

Lagemaat:

Well, I'm saying there was a time when it was all public.

Capuano:

There was, yes. I didn't realize that somebody was going to go in there and try to take everything out of there and use it against me.

Lagemaat:

So you're saying --

Capuano:

I just assumed that it was to be -- be a normal Facebook account.

Lagemaat:

But you're saying you were very concerned about --

Capuano:

It was in 2014 that I blocked it. As soon as he put this stuff up on the website.

Affidavit of Patrick Fox, 2019-01-29, ¶49

Capuano falsely testified that she made her Facebook data non-public in 2014, as soon as she learned I had created the website.

However, it was actually in February 2016, a couple of days after the CBC story aired/ran, that Capuano made her Facebook data non-public. I had made the copy of her public profile, which I put on the website, a few days before the CBC story was released Cached copy of Desiree's Facebook Timeline.

The timestamps of some of the content in the copy I had put on the website prove the copy was generated in February 2016, which means as of that point, the content on Capuano's profile must have still been publicly accessible. I had explained this to both Lagemaat and Myhre, and I had directed them to the copy of Capuano's Facebook profile which I had put on the website. Therefore, both Lagemaat and Myhre must have known Capuano was lying when she testified. However, neither Lagemaat nor Myhre attempted to inform the court or the jury that they had reason to believe Capuano was lying under oath.

And then he would taunt me about how much more stuff he had that he hadn't put on the website, but he got it all before I put up the blocks.

Lagemaat:

Speaking of firearms, guns, you said in Tab 10, when we were referring to Tab 10 of the Crown's emails, that you were terrified to learn that Patrick had guns.

Capuano:

That he owned them? Yes.

Lagemaat:

But you knew he had guns previously; right?

Capuano:

No.

Lagemaat:

When you were together he didn't have guns?

Capuano:

No.

Lagemaat:

He never owned firearms when you were married.

Capuano:

Absolutely not. Never once.

Lagemaat:

And --

Capuano:

We also never went to a shooting range when we were together.

Lagemaat:

I didn't ask --

Capuano:

He put --

Lagemaat:

-- if he went to a shooting range.

Capuano:

No.

Lagemaat:

He did not own firearms.

Capuano:

He did not own firearms while we were together. He was using a fake social security number at the time.

Lagemaat:

I'm going to -- I'm going to go through the custody situation a little bit of Gabriel, just -- just to clear it up, get a -- a timeline because -- and this will be brief.

So he was born September 27th, 2000, in Phoenix; correct?

Capuano:

Yes.

Lagemaat:

You guys both moved -- moved to Los Angeles, or the three of you moved to Los Angeles sometime 2001, beginning, March.

Capuano:

Yes.

Lagemaat:

October the same year you moved back to Phoenix?

Capuano:

Yes.

Lagemaat:

Sometime after that, you said in direct, or I'm asking you now, you went to Florida and you left G. with your mother. You went for a short trip to Florida or whatever, you went to Florida, left G. with your mother.

Capuano:

In December, yes.

Lagemaat:

How long were you going to Florida for?

Capuano:

I was only there for a couple days. I already had a plane ticket back to go get him.

Lagemaat:

So you -- you made a two-day trip to Florida?

Capuano:

No, it's a two-day drive. It was going to be a week that I was there.

Lagemaat:

So you were making a one-week trip to Florida and leaving Gabriel with your mother; correct?

Capuano:

Correct.

Lagemaat:

How long did you have Gabriel for at that visit? Was it a -- was it a -- what was the period of time you were going to have Gabriel for, or did you have him at that time?

Capuano:

I had him.

Lagemaat:

Okay.

Capuano:

There was never any discussion about who would have him.

Lagemaat:

Okay.

Capuano:

Richard never indicated once that he wanted Gabriel.

Lagemaat:

So you went to Florida, Patrick drove and picked up Gabriel from your mother; correct?

Capuano:

Correct.

Lagemaat:

And February 2002, you had a hearing, a joint hearing -- or a custody hearing, you were both there, and you were granted joint, two weeks on, two weeks off; right?

Capuano:

Yes.

Lagemaat:

And you were directed to move back to Phoenix because --

Capuano:

I was given the option.

Lagemaat:

And you agreed.

Capuano:

No.

Lagemaat:

You -- you told the court you were going to remain in Florida?

Capuano:

Yes, I did.

Lagemaat:

And then you took -- the first two weeks was with you; correct?

Capuano:

Yes.

Lagemaat:

And then Patrick's first two-week access, he came there and picked him up; correct?

Capuano:

Yes.

Lagemaat:

And is that the last time you saw him for a long period of time?

Capuano:

Yes.

Lagemaat:

You said in direct evidence that Patrick disappeared for 10 years with Gabriel, but then you said nine also. That -- I'm not making anything of that. It was nine or 10 years in that time frame you said Patrick disappeared with Gabriel; correct?

Capuano:

Yes. He showed up twice, in 2005 and 2007.

Lagemaat:

But to your mother, not -- not to you; correct?

Capuano:

Correct.

Lagemaat:

Isn't that kidnapping?

Capuano:

Yes.

Lagemaat:

Did you ever file a police report that your child had been kidnapped?

Capuano:

Yes.

Lagemaat:

And police took no actions on a kidnapping?

Capuano:

I didn't know where he was.

Affidavit of Patrick Fox, 2019-01-29, ¶51

Capuano falsely testified she didn't know where I was during the nine years she was absent.

However, that is contradicted by her earlier testimony that I was, at various times, in contact with, and in the physical presence of, her mother in Phoenix in 2005 - 2007 TR 2017-06-12 p36l8-13; p36l36-38; p36l39-44; TR 2017-06-15 p50l31-33.

Capuano also admitted in an RCMP interview that on one occasion in particular Gabriel spent the night at her mother's home in Phoenix while I returned to Los Angeles to get my motorcycle RCMP interview, dated 2016-07-13, ¶200.

Both Lagemaat and Myhre were present for all of Capuano's testimony, including the contradictory statements referenced above. Moreover, they both had reviewed Capuano's statements to the RCMP prior to trial. Therefore, both Lagemaat and Myhre must have known Capuano was perjuring herself when she testified she didn't know where I was. However, neither Lagemaat nor Myhre attempted to inform the court or the jury that they had reason to believe Capuano was committing perjury.

I didn't know whether he was in Los Angeles or Phoenix.

Lagemaat:

The police couldn't find him?

Capuano:

No. Using what identification? He was Richard Riess in a foreign country.

Lagemaat:

But he must have been working; right?

Capuano:

I don't know. I don't know that. I don't know if he was getting contract jobs, I don't know if he was working at all, I don't know where he was -- I don't know.

Lagemaat:

So sometime in early 2011 -- well, okay, let's put it this way, then. If you filed a kidnapping report, when they eventually --

Capuano:

I called CPS, I did not file a kidnapping report.

Lagemaat:

Okay. You said previously you filed a kidnapping --

Capuano:

I did not file a kidnapping report.

Lagemaat:

-- report with police.

Capuano:

I contacted police, I contacted CPS, I contacted attorneys and lawyers.

Lagemaat should have confronted Capuano with the fact that none of the agencies she claims to have contacted have any record of her contacting them - or of anyone contacting them regarding Gabriel.

Lagemaat also should have confronted Capuano with why she never contacted the Torrance court - the same thing the California family court judge asked her in 2011. He should have asked her since that question had already been raised by the California family court and her response that she didn't know that's what she could have done had been deemed not credible then why is she again trying to claim it.

Capuano claims she had contacted lawyers, but the first thing any family law lawyer would advise her to do would be to contact that family court where we had our custody case, and inform them I had absconded with the child. The good thing about Desiree's incessant lies is that they rarely stand up to any scrutiny. Yet, amazingly, the masses of idiots that make up our society blindly accept those lies without question (and that's why I created the Desiree Capuano website).

Lagemaat:

Why was he not charged with kidnapping if you -- well, you're saying now you didn't file a police report with kidnapping. So sometime in early 2011, Patrick wrote you a letter to reinitiate contact; is that correct?

Capuano:

Yes. I did go and see him in 2009 and demand to know where my son was, and he refused to tell me. But, yes, in 2011 he reached out to me.

Lagemaat:

And you replied to him in a letter; correct?

Capuano:

Yes.

Lagemaat:

Do you recall that letter you sent?

Capuano:

Yes.

Lagemaat:

If you were to see it, would you recognize it?

Capuano:

Yes.

Lagemaat:

I'm going to pass you a letter and you can take a look and tell me if you recognize this as the letter you sent him on March 8th, 2011. Take your time, Ms. Capuano.

Capuano:

Yes.

Lagemaat:

So you accept that's a letter you wrote to him?

Capuano:

Yes.

Lagemaat:

March 8th, 2011? My Lady, I'm going to ask that this letter be made an exhibit.

Judge:

Mr. Myhre, any objection?

Myhre:

Well, I think my friend can cross-examine Ms. Capuano on her statement. I'm not sure it becomes an exhibit in the trial.

Lagemaat:

Would you like a copy to the jury to follow along? I'm going to be --

Judge:

Can I see it, please, so I have some idea of what we're talking about?

Lagemaat:

I will be going through --

Judge:

Thank you.

Lagemaat:

-- a total of three paragraphs, not in -- not the complete paragraphs because the first paragraph is two pages.

Judge:

I think I need to hear from you about the purpose for which it's tendered or to be used, and maybe that needs to be -- maybe we need to stand down --

Lagemaat:

I -- I agree, My Lady.

Judge:

All right. So members of the jury, I'm going to ask you to take a short -- short break, please.

(JURY OUT)

Lagemaat:

Perhaps would we have --

Judge:

Yes.

Lagemaat:

-- Ms. Capuano remain?

Judge:

Ms. Capuano, I'm going to ask you to remain outside the courtroom while we have this discussion, so we'll stand down very briefly.

(WITNESS STOOD DOWN)

(PROCEEDINGS ADJOURNED)

(PROCEEDINGS RECONVENED)

Judge:

All right.

Lagemaat:

It's -- it's my theory that this -- this was a custody battle gone very bad and Ms. Capuano has made it look like Mr. Fox essentially -- I use the word kidnapping, but took the child and disappeared for nine years or ten years.

And this letter is the first -- the beginning of a correspondence at the end of that period, and it's her saying what she has been up to, but most importantly in my view it is her saying that she agreed for him to take the child and raise the child, because -- and that's on the first page and then she says she thought it would be better for her to get her life together, and she goes on to explain for a few pages what she has done to do that.

So it's -- it's my position this letter sets out what had happened and the part I am mostly re -- relying on is the first paragraph -- or the second full paragraph, the long one [as read in]:

What changed for me, what made me stop fighting, was a conversation you and I had where you actually asked me not to take Gabriel. You were sincere.

So she agrees in -- in -- and I'm sure she'll have her own point of view, but she agrees that Gabriel should go with him, and then she takes these steps to improve her life and be in a better position for when she could essentially be a mother again, and at one point she says:

I could search him out, that is true, but why would I do that?

which it would be my position that she wasn't taking steps.

Judge:

So do I take it from that that it would be cross-examination on a previous inconsistent statement?

Lagemaat:

Yes.

Judge:

So normally the statement wouldn't go in, and particularly when it's much longer than what you are proposing to cross-examine on.

Lagemaat:

Then I would suggest I would -- it won't go in and I'll just cross-examine her -- I'll put it to her and cross-examine her on what she said in the letter, but I will read it in.

Judge:

It may be that her responses will take us to other parts of the letter.

If it gets to the point that the jury is going to need the whole thing in order to understand the evidence, then we might reconsider, but if you are simply proposing to put certain portions to her as previous inconsistent statements then I would think -- subject to any further submissions from either of you, I would think that it shouldn't -- copies should not go to the jury and the statement itself would not be an exhibit.

Lagemaat:

And what about me reading in sentences to -- or putting those to her?

Judge:

Well, you need to do that, yes --

Lagemaat:

Yes, okay. Then --

Judge:

-- so that the jury knows what she --

Lagemaat:

Then we'll leave it at that and I'm only relying on small portions, not enough that it needs to be an exhibit.

Judge:

And I am wondering, since we have broken, whether I should give the jury a mid-trial instruction about previous inconsistent statements --

Lagemaat:

I -- I think that would be a good time to do that, My Lady.

Judge:

-- explaining that it would go to credibility only.

Lagemaat:

Yes.

Judge:

Yes? Yes, Mr. Myhre?

Myhre:

I agree, My Lady.

Lagemaat:

And there's one issue -- one -- one other issue I could bring up now, rather than saving -- removing the jury again later, and it's to do with what we talked about Carrington College yesterday, the hearsay.

And I looked back through my student's notes, which are quite precise, and a similar statement was made about her job at Phoenix, that she was told she was let go because she was a security risk.

Judge:

Yes.

Lagemaat:

I believe that should be added on to the Carrington instructions.

Judge:

Do you wish me to give another mid-trial instruction or keep that thought --

Lagemaat:

Yes.

Judge:

-- for the final instructions?

Lagemaat:

I would say keep it for final instructions. I just wanted to bring it up while we have everybody out.

Judge:

What was it called again?

Lagemaat:

It -- it was the Phoenix University, her first job that she said she lost, and it was -- she was told she was let go because she was a security risk, and then the Carrington was she was told she didn't get the job because of --

Judge:

I'm not sure it was Phoenix University.

Myhre:

It was Apollo.

Lagemaat:

Or, sorry, sorry, Apollo, who owns Phoenix, yes.

Myhre:

And the other was Pima Community College. Pima Community College was the one that she said that she --

Lagemaat:

Pima -- Pima -- not Carrington, Pima.

Myhre:

-- [indiscernible/ 10:43:55 AM].

Lagemaat:

I apologize.

Judge:

All right. Now, logistics, should I be giving the instruction about previous inconsistent statements in the presence of Ms. Capuano or not?

Lagemaat:

I don't have a submission on that, My Lady.

Myhre:

Me neither, My Lady. I don't think it matters.

Judge:

All right.

Lagemaat:

I have no -- either way.

Judge:

Then we I think only need to stand down once. Will this be a lengthy line of cross-examination? I was -- you were looking at the clock, Mr. Lagemaat, and I'm wondering whether we should just take the morning break early.

Lagemaat:

I think that would be a good time to do that, My Lady.

Judge:

Now, I've not given the usual warning to Ms. Capuano. Mr. Myhre, would you just remind her, without saying anything else, please?

Myhre:

I will.

Judge:

Is there anything else we should deal with?

Lagemaat:

Not from me, My Lady.

Judge:

Mr. Sheriff, if you wouldn't mind advising the jury we're going to now take the morning break?

Sheriff:

Yes, My Lady.

Judge:

Thank you.

(PROCEEDINGS ADJOURNED FOR MORNING RECESS)

(PROCEEDINGS RECONVENED)

(JURY IN)

DESIREE CAPUANO,

recalled.

Desiree being cross-examined on the letter she sent me in 2011, admitting she had known where Gabriel and I were during the nine years she falsely claimed I had been hiding Gabriel from her, and that she had deliberately chosen not to have contact with us during that time

Judge:

Members of the jury, before we continue on this, an instruction I'm going to give you, you're going to hear some cross-examination on -- I'll call it a statement said to have been previously made. It's actually a set of statements. So this is a general instruction that applies to witnesses who are cross -- applies when witnesses are cross-examined about statements they've made on previous occasions.

Common sense tells you that if a witness says one thing in the witness box but has said something quite different on an earlier occasion, this may reduce the value of his or her evidence. The inconsistency may affect the witness's credibility. You will have to decide whether the witness in fact gave an earlier and different version from his or her testimony about the same event. If you find, after you've heard all the evidence, that the witness did give an earlier and different version of events, then you consider whether the differences are significant. You should consider any explanation the witness gives for the differences, you should consider also the fact and nature and extent of any differences when you decide whether and how much to rely on the witness's testimony. That all relates to the witness's credibility.

You must not use the earlier statement as evidence of what actually happened unless you conclude that the witness accepted the earlier statement as true while testifying in the witness box, and even then, as with any evidence, you will decide whether and how much to rely on it.

And finally, if you do not find that the witness gave a different version of events in an earlier statement, you may not use the earlier alleged statement in any way at all. The allegedly inconsistent earlier statement must play no part in your assessment of the witness's credibility or in your determination of what happened.

I will give you instructions similar to these in the instructions I give you at the end of the trial, but because you're about to hear some cross-examination on what is said to be a previous statement, I wanted you to have a preview of how that cross-examination may and may not be used.

All right. Thank you for your attention to that.

CROSS-EXAMINATION BY MR. LAGEMAAT, CONTINUING:

Lagemaat:

So you've accepted, Ms. Capuano, that this is the letter you wrote to Patrick on March 8th, 2011; correct?

Capuano:

Yes.

Lagemaat:

I'm going to read in a portion of what you wrote here. Firstly you apologize for typing it. Your handwriting's -- your hand's cramped up and you're lazy and prefer typing. And then you move on that you'll start with you because it's easier. You start in 2001, 2002.

Judge:

I think, if you're paraphrasing --

Lagemaat:

Yes.

Judge:

-- you need to -- it's not clear who --

Lagemaat:

Okay.

Judge:

-- you're referring to as "you"

Lagemaat:

Ms. Capuano, going -- on the second paragraph, and I'll read in what is eight lines down, what you wrote to Mr. Fox [as read in]:

What changed for me, what made me stop fighting, was a conversation you and I had where you actually asked me not to take Gabriel. You were sincere. You weren't the nicest to Gabriel for the first year when we were still together.

In brackets:

I know you probably don't want to admit it now.

Smiley face, bracket closing.

So to hear that you had a love for him, that touched me. Then when we took him to Florida for those two weeks, Richard, he didn't want to leave you and he certainly didn't want to go with me. There was a bond there. And although it crushed me that he didn't even remember me, it made me happy that he wanted to be with you. If tension and emotions weren't already running so hot, we may have been able to work something out at that point. But to my regret, I let someone else take the lead. I remember the last email I sent to you. It was in response to you saying that, no matter what, Gabriel needed his mother. It was not because I had given up on him, it was because you guys loved each other.

Isn't it accurate, Ms. Capuano, this is referring to you making a decision that it would be best for Gabriel to go with Patrick during this period?

Capuano:

The fighting was for custody. The fight that I indicated that I was not going to continue was a fight for custody.

Lagemaat:

So you were giving up on the fight for custody is what you're saying here.

Capuano:

Yes, I wasn't going to try to take him away.

Lagemaat:

You were going to let him go with Patrick. You thought that was --

Capuano:

Well, I was going to let --

Lagemaat:

-- best for the -- sorry.

Capuano:

I was going to let the joint custody stand.

Lagemaat:

Moving down one, two, three, four, five full lines down [as read in]:

That said, it was so hard to be away from him. It tore me apart and it hurt 10 times worse every time we talked or emailed or anything, so I let you have him.

Capuano:

Mm-hmm.

Lagemaat:

You let him have him.

Capuano:

During that first couple months of the separation and the fighting.

Lagemaat:

I used that pain as my strength to do everything I could to improve my life, thinking that the day I could be with him again I would have food in my fridge, video games for him to play, bills paid, and money that we could use to go see movies and such.

And I'll -- not to characterize the letter, but in your direct evidence you said you basically got your life together and went to school; correct?

Capuano:

Yes.

Lagemaat:

Is that what you're referring to here?

Capuano:

Yes.

Lagemaat:

Turning to the second page and about halfway down, if you look in the middle of the sentence -- in the middle of the sentence, there's a new sentence starts with "I vowed at that point". Are you there?

Capuano:

Yes.

Lagemaat:

Okay. [As read in]:

I vowed at that point that I was moving back to Phoenix. Actually, I just straight up told Michael we were moving. It was always my plan, primarily because it might be where you and Gabriel were. And if not, at least not so far away from CA.

That's California?

Capuano:

Yes.

Lagemaat:

Bracket:

I will add here that it absolutely killed me both times Gabriel asked me to see him. I had to think of some way to say no while telling him how so very much I wished I could. That drove me to go to school full-time, including over the summers.

Closing bracket.

Your child wanted to see you and you -- you had to think of some way to tell him no?

Capuano:

It was during a conversation in 2005 while he was with my mom and I was in Florida, and then during our conversation in 2007 while he was in Arizona and I was in Florida.

Lagemaat:

Why did he ask --

Capuano:

He wanted me to -- he wanted to see me right then.

Lagemaat:

Sorry, I was speaking. Why did -- he ask you to see him. Why didn't you say yes?

Capuano:

I was hundreds of miles away without the money to get a plane ticket.

Lagemaat:

Yet you hadn't seen your child for how long? He asks you to see him and you could not get to where he was, and he's there -- you're -- you're saying in your evidence you didn't know where he was all this time, and all of a sudden now in this letter you're saying he's there, this is where he is, he's called me twice, wants to see me, and you could not make the effort to get there.

Lagemaat grills Capuano on why, if her son had been missing for years, as she had been claiming, and she suddenly knew exactly where he was, she didn't make any effort to get to him?

Although Lagemaat doesn't bring it up in here, there's also the more obvious question of: If Desiree or her mother suddenly knew where Gabriel and I were, after being missing for years, why didn't they contact the Phoenix police or authorities and inform them?

Desiree's claim that I had disappeared with Gabriel has never stood up to any scrutiny, but now her failure to be able to explain any of this proves the whole thing was just lies. Desiree falsely accused me of abducting her son and absconding with him for years, without the slightest concern for how that might harm me or Gabriel. She really is that evil.

Capuano:

He was gone days after. Even if I had got on a plane --

Lagemaat:

Well --

Capuano:

-- he might not have been there by the time I got there.

Lagemaat:

Did you try?

Capuano:

No.

Lagemaat:

You said he might not have.

Capuano:

He had contact with my mom.

Lagemaat:

Pardon me?

Capuano:

He had contact with my mom, and my mom was giving me updates of where he was.

Lagemaat:

Regardless --

Capuano:

And two days later Mom says, "He's gone."

Lagemaat should have crossed Capuano on why, at any of the allegedly brief periods where her mother knew where I and Gabriel were, she didn't contact the Maricopa County Sheriffs or the Phoenix Police at that moment and tell them I was absconding with her son, and tell them where I was at that moment.

If I really had been absconding then they would have come and arrested me.

Desiree also admits that Gabriel spent the night at her mother's home one time in 2006, while I returned to Los Angeles to handle some affairs RCMP Interview, ¶200. Why didn't Desiree or her mother contact the authorities at that time?

Moreover, again, if her claims were true, and she had simply contacted the Torrance Court then a warrant would have been issued for my arrest. If she had really cared, at all, about Gabriel, then why did she not put even the tiniest effort into finding out what she should have done about it.

Lagemaat:

Regardless -- regardless, you're saying here he asked you twice and you had to think of some way -- what -- what way did you tell him no? How did you tell him no? Did you lie to him?

Capuano:

No. I told him I couldn't get on a plane and told him I couldn't fly out there. I also had no phone number to reach him. He called -- my mom called me from her phone when he was at her house in 2005. I had no phone number to reach him. So if I could have gotten on a plane, all I could have gone was to my mom's, and she may have had some way to reach Richard, but he was the one that was initiating the contact.

Lagemaat:

May have had. So you don't know.

Capuano:

If my mom would have had a way to reach him? No, I don't know. Richard is the one that reached out to my mother.

Lagemaat:

You also --

Capuano:

And then in 2007 I tried to call back and no answer. I got no answer. And in 2007, I was already planning on moving.

Lagemaat:

But you had these two opportunities to see your son and you said, "No," and you say you didn't -- you may have got there --

Capuano:

I wasn't able to.

Lagemaat:

I'm sorry, I'm talking -- you may have got there and he wouldn't have been there anymore, but you didn't even make the effort to get there; is that correct?

Capuano:

I -- I had another child too.

Lagemaat:

But you had a child who'd been missing.

Capuano:

Yes. Yes.

Lagemaat:

Thank you. Turning to the next page, bottom paragraph [as read in]:

As far as Gabriel goes, I have been waiting a very long time for this to happen and there's no way I'm going to rush anything or make anyone feel uncomfortable in -- in any way. I'm completely prepared for him to have a lot of questions and to not think the world of me. That's okay. He's completely justified in whatever feelings or opinions he has toward me. I hope, like you, that he can overcome them and try. But just knowing how well he's doing is enough for now. I will go at no one else's pace but his. I could search him out, that is true, but why would I do that?

What do you mean by that? You -- you told -- you said earlier you were searching him out. Here you're saying, "I could search him out, that is true, but why would I do that?"

Capuano:

I'm talking to the man that holds all the cards.

Lagemaat:

Pardon me?

Capuano:

I'm talking to the man that holds all the cards. I'm talking to the person that has the location and -- and the whereabouts.

Lagemaat clearly caught Desiree in a lie and she's panicking. All the stuff she's been telling people to get their sympathy over the past 15 years is being exposed as lies, in open court.

Since she can't possibly explain this inconsistency, and her own words in that letter prove she's been lying in the news media, she instead tries to change the topic by being melodramatic and portraying herself as the victim.

Lagemaat should have pointed out I was in custody - there was nowhere I could have gone. He should have asked her why she didn't file something in the family court at any point during that nine years. The court could have ordered me to disclose Gabriel's location. If Capuano responded that she didn't know that's what she could have done, then Lagemaat could have pointed out she'd had a number of years to look into what she could have done - yet she did nothing. Not to mention, she's insisting she had contacted CPS and the police, surely they would have advised her to contact the family court.

Clearly she was not very interested in finding Gabriel.

And I'm admitting my faults. I wasn't perfect. I didn't handle that situation perfectly. I didn't. There were a lot of things I could have done a lot different throughout the whole thing, but this is how it happened.

Capuano appears to be misdirecting, here. Likely because she was lying about having contacted various authorities and she suspected Lagemaat had proof of such. Lagemaat should have caught that and realized she was attempting to misdirect.

This also would have been a good time for Lagemaat to bring up Capuano's trip to Europe. He should have pointed out that on the one hand she claims to have been so concerned for Gabriel and interested in finding him, yet she's taking vacations she can't afford, to Europe. He also should have pointed out that Capuano claims she couldn't afford a lawyer to help her find me, but she could afford a trip to Europe. This could have shown the jury:

that Capuano was lying; and
where her priorities really lay.

This is typical female sociopath, manipulation tactics. Crying while saying things like "I'm admitting my faults. I wasn't perfect. Blah, blah, blah." But it's all an act. Don't think there's one ounce of sincerity to her performances. Spend a little time around female sociopaths and you'll quickly realize this is just what they do. This is how they get their way. Read a fucking book on sociopathic behavior, for Christ's sake! And, as Lagemaat later points out to the jury, in his closing arguments, that while it seemed like Capuano was crying during parts of her testimony, she never actually shed a single tear, never once had to dry her eyes.

Lagemaat:

So you didn't search him out during that period.

Capuano:

I did call CPS. I did not do a social security number search for him.

Lagemaat:

So you --

Capuano:

I didn't know if that would even get me anywhere.

Lagemaat:

And you didn't call the police.

Capuano:

I called CPS, I called Homeland Security, I called all kinds of people. But the police --

Lagemaat:

CP --

Capuano:

-- I called -- I did not make a missing police -- person report with the police.

Lagemaat:

CPS is Child Protection Services --

Capuano:

Yes.

Lagemaat:

-- correct? The best way -- and I continue on:

The best way is for the people he loves, trusts, and knows to give him the information and let him process it in his own way and make his own decision about he wants to do, always. I will hope for a phone call one day, believe me. It's the only thing I wish for, but I'm not going to initiate it.

Is what you said in that letter true or false, that you didn't seek him out?

Capuano:

Trying to find --

Myhre:

Sorry, that's not an accurate quote.

Lagemaat:

Did you search him out?

Capuano:

Trying to find his physical location and trying to make contact with him are two different things. I tried to find his location. I did not try to make contact with him.

Lagemaat:

Thank you.

Capuano:

You're welcome. Making contact with him is a much more delicate situation.

Lagemaat:

So going back to the timeline which I was going through before and I -- I stopped at 2011, we're at the end of this nine or -- approximately nine-or 10-year period. August 2011, after sporadic contact with G., and I'm -- I believe it was telephone contact, you show -- you -- you travelled to Los Angeles to see him, to meet him?

Capuano:

Twice.

Lagemaat:

Twice. September 2011 there was a custody hearing in Arizona court?

Capuano:

Yes.

Lagemaat:

What happened in that custody hearing?

Capuano:

Richard filed the UCCJEA, said the home state of the child is California, and the judge agreed and made me return him.

Lagemaat:

So it was a jurisdiction argument. He was returned to California; correct?

Capuano:

Yes.

Completely false! The jurisdiction issue has to do with which court (California or Arizona) will have the case. It has nothing to do with which state or parent the child will reside with.

Under the UCCJEA, California was Gabriel's "home state" because it's where he had been residing for the past six months or more. But just because California is the child's home state, doesn't mean the court is going to order that the child remain in California. If, for example, it was determined that I was an unfit parent, then the court would grant Desiree custody in Arizona but the case would remain in California.

The California court didn't order Desiree to return Gabriel to my care because of a jurisdictional issue, it ordered her to return him to my care because she had abducted him from his home in Los Angeles, absconded to Arizona with him, then tried to get emergency custody by falsely claiming I had been hiding Gabriel from her for nine years.

Lagemaat:

November 8, 2011, custody hearing in California.

Capuano:

Oh, sorry, the one in -- in August was in Arizona.

Lagemaat:

Yes. I'm moving on now to -- to November 8th. There was a custody hearing in California and again Patrick had the child, correct, and you had visitation?

Capuano:

No. In August, the case that was heard was in Arizona. I was trying to move the custody case to Arizona. The one in November 8th was Richard saying that the home state of the child was California --

Lagemaat:

Who --

Capuano:

-- and that I should return him.

Lagemaat:

Who walked out of that courtroom November 8th with physical custody? 2011.

Capuano:

Physical custody wasn't determined at that, it was only the home state of the child.

Affidavit of Patrick Fox, 2019-01-29, ¶52

Capuano falsely testified that no custody determination was made by the California family court at the November 2011 hearing; that the hearing was only about which state was Gabriel's "home state" under the UCCJEA.

The minute entries of the hearing prove that is false. The home state issue was discussed amongst the Arizona and California family court judges themselves and the determination was made, prior to the hearing, as required under the UCCJEA. At the time of the hearing, Gabriel was in Capuano's custody in Arizona, pursuant to a temporary emergency custody order she obtained in the Arizona family court in August 2011, based on her false claim I had been hiding Gabriel from her for the past nine years. Then, at the November 2011 hearing, the California family court ordered Capuano to return Gabriel to my care and custody "without delay" - that is, unquestionably, a custody determination and a change in custody status LASC minute entry.

Both Lagemaat and Myhre knew of the minute entries of the family court which were on the website. Also, I had discussed the circumstances of the November and December 2011 family court hearings at length with both Lagemaat and Myhre prior to trial. Therefore, both Lagemaat and Myhre must have known Capuano was lying when she testified. However, both Lagemaat and Myhre refused to inform the court or the jury that they had reason to believe Capuano was lying.

Lagemaat:

So still with Patrick.

Capuano:

Gabriel was with me at the time.

Lagemaat:

Or with you. Sorry. December 6th, 2011, mediation. And where was this mediation? It was in California because that was jurisdiction now; correct?

Capuano:

Correct.

Lagemaat:

And what happened during that mediation?

Capuano:

We got joint custody. Primary physical custody was with Richard. I had visitations.

Lagemaat:

February 12th, 2012, Patrick petitioned California court to have you do a drug test --

Capuano:

Yes

Lagemaat:

-- for -- for your access, right, before you could -- before he would facilitate your access; correct?

Capuano:

Yes.

Lagemaat:

Why did he want you to do a drug test?

Myhre:

Objection.

Lagemaat:

Did you do the drug test?

Capuano:

No.

Lagemaat:

And that was to do with your arrest; correct?

Capuano:

Yes.

Lagemaat:

Your arrest for marijuana possession?

Capuano:

Yes.

Lagemaat:

Were you convicted?

Capuano:

No.

Lagemaat:

What happened to that conviction?

Capuano:

They were dropped.

Lagemaat:

Or the charge. Sorry.

Capuano:

Charges were dropped.

Lagemaat:

Under what program?

Capuano:

I did -- I submitted to a test program that does drug testing, random drug testing, and a fine. So I submitted to multiple months of random drug testing --

Lagemaat:

And what's that --

Capuano:

-- [indiscernible/overlapping speakers.]

Lagemaat:

-- program? I believe the acronym is P-O-P.

Capuano:

TASC is the program that administered the drug tests.

Lagemaat:

No, no, the --

Capuano:

It's a PROP.

Lagemaat:

-- the program under which the -- we have programs here that do similar things. The program under which the conviction is not -- or the charge is not a conviction, there's not --

Capuano:

PROP 202.

Lagemaat:

Pardon me?

Capuano:

PROP 202.

Lagemaat:

PROP 202. What does PROP stand for?

Capuano:

I don't know.

Lagemaat:

Okay. And under that you admit your guilt.

Capuano:

Yes.

Lagemaat:

And you submit to testing, and they want to see -- I'm asking you, and they want to see that you're doing well, and then there's no conviction, no charge; correct?

Capuano:

Correct.

Lagemaat should have then crossed Capuano on the emails where she boasts about continuing to use marijuana while doing TASC. This would have shown the jury her disregard for rules and that if she thinks she can get away with something she knows she's not supposed to do then she'll do it anyway. This would also contradict her statements about hating that she was breaking the law by using marijuana prior to getting her medical marijuana card TR 2017-06-15 p34l11-13, because even after that point, she continued to break the law by using marijuana while participating in a drug diversion program that prohibited the use of marijuana.

Lagemaat also should have crossed Capuano on whether she disclosed to the Arizona Department of Health Services that she had, at the time of her application, an outstanding charge for possession of marijuana; or that she had been using marijuana illegally for more than 11 years. Those facts would have disqualified her from obtaining the medical marijuana card. Which means she must have lied on her medical marijuana application.

While on this line of questioning, Lagemaat also should have crossed Capuano on my claims that she's a drug addict, since that is a claim that has drawn a lot of angry attention. He should have crossed her on how long she's been using marijuana, how frequently she uses it, how many times a day, how soon after waking up? And what other drugs she uses or has used. She would likely try to rationalize her marijuana use by saying it's legal and she has a card. Lagemaat could have countered by pointing out that alcohol is also legal, but if you're drinking every day, and if you're drinking first thing in the morning, you probably have a problem.

Lagemaat:

Okay. October 2012, and you talked about this in direct, there was a search warrant on your home. November 28th, 2012, Patrick took the matter into court, he requested to relocate with G. to Vancouver; correct?

Capuano:

Yes.

Lagemaat:

And that was denied.

Capuano:

Correct.

Lagemaat:

And he stayed in California.

Capuano:

Yes.

Lagemaat questions Desiree on having me deported from the US so she could get custody of Gabriel.

He was trying to get her to admit the only reason she got me deported was so she could get custody of Gabriel, and so I wouldn't be able to keep fighting her in the family court.

During this line of questioning, Lagemaat points out that the way Desiree is phrasing her responses, it is clear she was again thinking in terms of "winning" and "losing" battles in the ongoing dispute between us. And that having me deported was, to her, a very big win p31l29-45.

Lagemaat also questioned Capuano on the time she called ICE when I appeared for a family court hearing in Los Angeles, and ICE came to the courthouse and arrested me, then deported me again p32l6-33. In one of her RCMP interviews, Desiree laughed and joked with the Detective about this incident, stating she wished she could have been a fly on the wall to witness it RCMP Interview ¶514. Lagemaat tried to get her to admit she thought the having me repeatedly deported was funny.

Lagemaat:

December 2012 -- what does ICE stand for? Immigration ...?

Capuano:

Custody Enforcement, I think.

Lagemaat:

Yes, Immigration Custody Enforcement. Did you make a report regarding Patrick to ICE?

Capuano:

I called a tip line.

Lagemaat:

And is it correct in January 2013 he was arrested?

Capuano:

Yes.

Lagemaat:

What was the purpose of your tip?

Capuano:

To let them know that a person who was not a U.S. citizen was in the United States and he was trying to take my son.

Lagemaat should have pursued this further. Capuano made it sound as though she had custody of Gabriel at that time and that I was trying to take him and run off to Canada with him. Lagemaat should have pointed out that I had custody of Gabriel, so how could I have taken Gabriel from her.

If Capuano had responded that what she meant was that I was trying to take away her visitation, then Lagemaat should have asked her, if the situation were reversed, if Capuano had found out the police searched Liz's home and found crystal meth and a stolen assault rifle, what would SHE have done. He also should have pointed out that, in fact, the family court documents show that I was NOT trying to take away her visitation, he was only requesting her visitation be supervised until the next scheduled hearing (4 moths away) due to the crystal meth and assault rifle, and her insistence on trying to withhold that kind of information from me. And that my actions seem clearly motivated by a desire to keep Gabriel safe during his visits with her.

Lagemaat:

That was the tip. What was the purpose of your tip? Why --

Capuano:

To have him removed from the country.

Lagemaat:

Did you think that would be in your child's best interest for his father to be removed from the country?

Capuano:

At this point, yes.

Lagemaat:

Or would be in your best interest because then you wouldn't have him there bothering you in California courts making applications, trying to take away your time? Isn't that more accurate, Ms. Capuano?

Capuano:

He was in the United States using another name, trying to get a job illegally. In my opinion, it was both.

Lagemaat should have, at this point, crossed Capuano on exactly when and under what circumstances she received full custody of Gabriel. This would have shown the jury that she only received custody BECAUSE I was deported - NOT because the family court found her to be a better parent or able to provide a better environment for Gabriel.

Lagemaat also should have crossed Capuano on whether, since that point, Gabriel has told the court he wants to live with me. He did so, through a court appointed mediator, in Spring 2014. The court denied Gabriel's request at that time, ordering that he would stay with Capuano. This further suggests that my loss of custody was related to being deported.

This is significant because the Crown and Capuano had led the jury to believe Capuano gained custody based on some determination by the family court that being with her would be in Gabriel's best interests.

Lagemaat:

So you're concerned for the economy and -- and immigration --

Capuano:

Well, I was just concerned about my son seeing what's right and wrong --

Lagemaat:

Pardon me?

Capuano:

-- and my son being taught that this type of behaviour and going through life lying and pretending is not right.

Lagemaat:

But you had no concern for your marijuana use with your son?

Capuano:

I had a card. I had a medical marijuana card --

Lagemaat:

At the time you were charged?

Capuano:

Before I saw the judge for that -- for that charge, I had my card in hand.

Lagemaat:

But you didn't have it when they came into your home.

Capuano:

When they arrested me, no.

Lagemaat:

Yes.

Capuano:

I had a meeting set up with a doctor already.

Affidavit of Patrick Fox, 2019-01-29, ¶56

Capuano falsely testified she had already scheduled an appointment to see a doctor to apply for a medical marijuana card prior to her arrest for possession of marijuana on 2011-09-27.

The copy of Capuano's medical marijuana applications and the supporting documents on the website prove this is false medical marijuana application; Scottsdale Police report, page 6. Capuano made the appointment to see the doctor AFTER her 2011-09-27 arrest. At the time of her arrest, Capuano told the police she was in the process of gathering her medical records and that she needed to schedule an appointment to see the doctor for a medical marijuana card Recording of Desiree's arrest, for possession of marijuana.

On 2011-11-01, before Capuano's application was approved, she was caught by the police, again, possessing marijuana illegally. This time in a public place, when she arrived at the scene of her fiance, Kristopher Lauchner's, arrest, to take custody of her children whom she had left in Lauchner's care while he was committing crimes. On that occasion Capuano, again, lied to the police by claiming she already had a medical marijuana card Scottsdale Police report, page 9. Capuano was not arrested at the time, for the sake of the children. This is all documented in the police report which was on the website.

Both Lagemaat and Myhre knew of, and had reviewed Capuano's medical marijuana applications, and the Scottsdale Police reports of the 2011-09-27 and the 2011-11-01 arrests. Therefore, they must have known Capuano was lying when she made this statement under oath in her testimony. However, both Lagemaat and Myhre refused to inform the court or the jury that they had reason to believe Capuano was committing perjury.

Lagemaat:

Yet -- yet you feel that you need to inform on Patrick when you see him doing something unlawful and knowing the end result could be he's out of the country.

Capuano:

I told him and asked him many times if we could work amicably on a resolution for the child.

Affidavit of Patrick Fox, 2019-01-29, ¶54

Capuano falsely testified she told and asked me many times if we could work amicably on a resolution for Gabriel.

However, the court documents and the emails on the website prove that is completely false. There were only two times Capuano appeared to be amicable, and both of those times it was only because she believed she was completely defeated and had absolutely no chance of prevailing:

At the December 2011 custody mediation hearing Conciliation Court agreement - but only because Capuano knew the family court was very upset with her for having abducted Gabriel in August 2011 (4 months prior), taking him to another state, and getting a temporary emergency custody order by falsely claiming I hid Gabriel from her for nine years. Capuano also had a lawyer representing her at that hearing.
Upon my release from ICE custody in February 2013 email dated 2013-02-17 - but only because the California family court had said at the hearing two weeks prior that upon my release I can request an ex parte hearing for Gabriel to be returned to my custody LASC minute entry and so, Capuano believed, again, that the family court was very upset with her for having deliberately caused my arrest and detention by ICE as a way for her to get custody of Gabriel, and that the family court was again going to order her to return Gabriel to my custody.

Otherwise, every single other court document and every email shows Capuano refusing to cooperate in Gabriel's interests; refusing to allow Gabriel to visit me unless it was ordered by the family court (or she falsely believed it was ordered by the court); refusing to get Gabriel's passport until it was ordered by the court; refusing to contribute to Gabriel's financial needs unless it was ordered by the court; refusing to provide her medical insurance information for Gabriel's benefit until the court told her she must; refusing to share information with me about Gabriel's education, medical care, health, et cetera, because she "was not required to under court order".

Both Lagemaat and Myhre knew of and reviewed all of the emails and family court documents on the website. Therefore, they must have known Capuano was committing perjury when she testified to this. However, neither Lagemaat nor Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.

That was not possible. Multiple times he had tried to remove visitation, multiple times he had tried to interfere with custody,

Affidavit of Patrick Fox, 2019-01-29, ¶53

Capuano falsely testified that multiple times I had tried to remove her visitation with Gabriel and multiple times I had tried to interfere with her custody of Gabriel.

However, family court documents on the website prove I never sought or requested to remove Capuano's visitation with Gabriel. The most I requested was that her visits be supervised, temporarily, until the next scheduled hearing, and that only because of I found out about the drug use (crystal methamphetamine) and criminal activity (stolen assault rifle by a prohibited possessor) going on in her home, and her consistent and repeated attempts to conceal that from me and to deny that Petition for Order to Show Cause, page 2, item 4.

Both Lagemaat and Myhre had full access to the family court documents which were on the website, and I had discussed this very issue with both Lagemaat and Myhre repeatedly prior to trial. Both Lagemaat and Myhre must have known Capuano was committing perjury when she testified on this matter. Yet neither Lagemaat nor Myhre attempted to inform the court or the jury that they had reason to believe Capuano was committing perjury.

multiple times he had gone after me for child support when I was the only one financially providing for him,

Affidavit of Patrick Fox, 2019-01-29, ¶55

Capuano falsely testified that multiple times I had gone after her for child support when she was the only one financially providing for Gabriel.

The emails and court documents, which were on the website, prove that from November 2001 through August 2011, and from November 2011 through December 2012 Capuano did not provide ANY financial support for Gabriel at all. Capuano had provided a single payment in the amount of $75 in September 2012, for partial reimbursement to Patrick's friend, Liz, for some school expenses, and not a penny more email dated 2012-12-04. Even in 2012, while I was unable to secure employment in Los Angeles, had sole physical custody of Gabriel, and both he and Gabriel were being supported by Liz, Capuano steadfastly refused to contribute ANYTHING to Gabriel's support or well-being, stating instead that if I cannot afford to provide for Gabriel then he should send Gabriel to live with her and I will never have to worry about it again email dated 2012-06-29. At that time I had no income and Capuano's income was approximately $70,000US/year.

In contrast to Capuano's refusal to contribute any financial support for Gabriel when he is not in her physical presence or custody, following my deportation to Canada (May 2013), as soon as I secured employment, in July 2013, and continuing until long after I was incarceration on this matter, until there was no money left in my bank account (February or March 2017), I consistently transferred $125CDN per week to Gabriel's bank account, and I provided Gabriel a credit card to cover any and all support related expenses. The credit card had a limit of $6,000CDN, and Gabriel was authorized to use it for any and all support related expenses. That is also discussed in the emails between me and Capuano email dated 2012-012-04, as well as in family court documents.

Both Lagemaat and Myhre knew of the emails and court documents which proved that Capuano had never provided any financial support for Gabriel while he was in my care or custody. Therefore, both Lagemaat and Myhre must have known Capuano was committing perjury when she testified on this matter. However, neither Lagemaat nor Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano had committed perjury.

besides Liz. Multiple times I had been trying to be a part of my son's life, a good part, and time after time it was negated and torn apart and -- and confusing --

Lagemaat:

He -- he took it away from you.

Capuano:

He tried.

Affidavit of Patrick Fox, 2019-01-29, ¶53

Capuano falsely testified that multiple times I had tried to remove her visitation with Gabriel and multiple times I had tried to interfere with her custody of Gabriel.

Lagemaat:

Similar to what you did on February 6th, 2013, when you went to court requesting sole custody and no communication between --

Capuano:

Temporarily.

Lagemaat:

-- Gabriel and Patrick, exactly what you're saying he's been doing to you.

Capuano:

Only temporarily.

Lagemaat:

Temporarily. Well, that day is what you wanted; correct?

Capuano:

Yes.

Lagemaat:

Similar to what you're just saying he was doing to you or attempting to do to you. And this -- this is -- this is two months after you call the tip line. I suggest -- when I asked you what was the purpose of the tip, I suggest here's the purpose right here, that two months later you have him removed -- you don't have him removed, you make the tip that results in him being removed, and two months later you're in court saying, "Sole -- I get sole custody, I want sole custody, and no communication."

Capuano:

Here's the difference. Every time that he tried to do that and I defended myself, I won because I was right and I was telling the truth.

Affidavit of Patrick Fox, 2019-01-29, ¶57

Capuano falsely testified that every time I tried to get sole custody of Gabriel and to revoke all her visitation and communication with Gabriel she won because she was right and she was telling the truth.

The California family court documents and recordings on the website prove that is false. First, they prove that I have never once tried to revoke or "take away", or even to decrease any of Capuano's visitation with Gabriel. Further, they prove that every time I sought any kind of change to the visitation agreement it was ALWAYS due to newly discovered evidence of criminal activity and drug use in Capuano's home, which directly impacted Gabriel's safety and well-being while in her care Requests for Order to Show Cause, 2012-02-03; Order to Show Cause, 2012-02-14; Order to Show Cause, 2012-11-27.

The family court documents also show Capuano consistently lied just as frequently and just as easily in those proceedings as she did in these proceedings.

All of those family court documents were on the website and had been reviewed by both Lagemaat and Myhre prior to trial. Therefore, both Lagemaat and Myhre must have known Capuano was lying when she made this statement. However, neither Lagemaat nor Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano had lied in her testimony.

The one time that I did that to him, he lost because he was lying.

Affidavit of Patrick Fox, 2019-01-29, ¶58

Capuano falsely testified that the one time she requested sole custody of Gabriel with no visitation or communication between me and Gabriel, I lost because he was lying.

The California and Arizona family court documents, which were on the website, prove that is false. The documents prove Capuano did not try to obtain a court order prohibiting contact between me and Gabriel only one time, as she testified, but rather three times - in September 2011 Petition for Order of Protection, in January 2013 Request for Order, page 7, and in August 2015 Request for Order. The documents also show that I did not make a single false statement, or "lie", at any time in the family court proceedings. The three subjects which Capuano keeps insisting I lied about have, by now, been well established to be true: his place of birth; his citizenship; and his name birth certificate; IRCC GCMS report, page 2; FOSS report; BC Driver's License. My "real", legal, and birth name is Patrick Fox, just as I has been stating, and that is proven by my government issued identification; I was born in the US, just as he have been stating, and that is proven by CBSA and IRCC documents; and, as a result of being born in the US I am, automatically, a US citizen, just as I has been stating. I do not believe there is anything else I have stated in the family court or in these proceedings which Capuano claims is false.

I believe I lost custody of Gabriel, in 2013, solely because I was deported from the US, not because I lied in the family court.

Lagemaat and Myhre had reviewed the family court documents prior to trial; they had seen my birth certificate and multiple pieces of government issued photo identification - in fact, Myhre himself had admitted them as an exhibit at the trial. Therefore, both Lagemaat and Myhre must have known Capuano was lying when she testified about me lying in the family court.

Moreover, me losing custody of Gabriel occurred immediately following my deportation from the US; and since that time, even though Gabriel has told the court he wants to live with me, the court has refused to return custody to me.

Lagemaat:

So it's about winning and losing.

Capuano:

No, it's about telling the truth.

Lagemaat:

It's about winning and losing, just like these emails where it was a game between you, a --

Capuano:

No.

Lagemaat:

-- banter of who would get the last word. And at this point it had gone beyond emails of trying to get the last word to in court and immigration and deportations and cutting off communications. It had gone beyond what we --

Capuano:

At this point --

Lagemaat:

-- read in the email.

Capuano:

-- there was no bantering back and forth. There was none. This is -- this is January of 2013. At this point there's no bantering in emails at all.

Lagemaat:

So February 15th, 2013, Patrick was deported again. You -- you'd called ICE again saying he was in the country. He was --

Capuano:

He was in the country again.

Lagemaat:

He was deported again. And March 20th, you again called ICE. And this is the day that -- this is the day that there was a court appearance.

Capuano:

He thought there was a court appearance.

Lagemaat:

He thought there was -- there was some mix up and there was a court appearance on the list, and he was there. You didn't think he'd be there, so you didn't attend.

Capuano:

It was off calendar.

Lagemaat:

Yes. But he was there, nevertheless.

Capuano:

Yes, he was.

Lagemaat:

You found out he was there from the registrar or the court clerk or somebody at the court. You can correct me on that if I'm wrong. And you called immediately to your source or your person you were working with at the FBI or ICE -- sorry, ICE, and said, "He's there. Go get him"; correct?

Capuano:

I didn't say go -- "He's there, go get him," no. I did say, "He's in the country again."

Lagemaat:

And where he -- and exactly precisely where he is; correct?

Capuano:

The courthouse.

Lagemaat:

Yes. And they went and got him and deported him again; right?

Capuano:

Yes.

Lagemaat:

You -- you were going to make sure that he wasn't in America; correct?

Capuano:

Yes.

Lagemaat:

Did you find it amusing that you had him deported?

Capuano:

No.

Lagemaat:

You didn't find it amusing at all.

Capuano:

No. It was scary that he kept coming in. The fact that he would continuously try was flabbergasting.

Lagemaat:

But not amused.

Capuano:

In a very ironic way.

Lagemaat:

Do you recall giving a statement to the police, a Corporal Wilcott [phonetic] --

Capuano:

Yes.

Lagemaat:

-- on July 13th, 2016?

Capuano:

Yes.

Lagemaat:

How was that statement given?

Capuano:

I don't remember exactly.

Lagemaat:

Were you amused in that statement that he'd been deported?

Capuano:

I was dumbfounded that he would try again and go to a courthouse.

Lagemaat:

I asked you, were you amused?

Capuano:

No.

Lagemaat:

Did you laugh?

Capuano:

Amusing in an -- no. Yes, I probably laughed but it was not in amusement.

Lagemaat:

It was in -- what was it in?

Capuano:

It was in, "What is this guy thinking?"

Lagemaat:

Do you wish you could have been in the courtroom watching or in the courthouse watching when the ICE --

Capuano:

I would have loved to have seen it.

Lagemaat:

Why?

Capuano:

Because he was trying to say that there was a court hearing that was on calendar, it was not on calendar. He's standing there arguing. And I know that when he thinks that he's right about something, he does not give up. And so he's challenging them and he's probably arguing back, and then Immigration walks in.

Lagemaat:

Probably. You don't know that.

Capuano:

Of course not.

Lagemaat:

But you would have loved to have been there to see them come in and get him; correct?

Capuano:

At that point, some small victory.

Lagemaat:

Small victory. There we go. Again, you -- you won that part of the game, definitely, because he was removed again.

Capuano:

He was wrong. He was in the country illegally. He was in the country illegally

Affidavit of Patrick Fox, 2019-01-29, ¶59

Capuano falsely testified I was present and living in "her country" (the US) illegally.

Contrary to Capuano's insistence, she has known since January 2000 that I was born in the US, and therefore am a US citizen. That is why we never applied for permanent resident status for me when we were together and Gabriel was born.

Although it might have been difficult to prove Capuano knew I was not an illegal alien, if Lagemaat had questioned her about it even a little, I believe it would have become apparent that she was lying to exploit the fact there is a removal order against me in the US Immigration Court - even though the order is based on a faulty perjury and false claim of US citizenship conviction. For example, if Lagemaat had questioned Capuano on why they did not try to get any type of legal immigration status back in 2000/2001; or why she never reported me to INS/ICE before she learned of the removal order against me; or why she believes ICE and the US Attorney's Office have consistently dropped all charges against me, related to illegal re-entry, even each of the times she called them; or why my fingerprints and mugshot don't match those on file with the Toronto Police for Ricky Riess; or the fact that she already admitted she sent my picture to Ricky Riess's father and he could not identify me as his son; her claim of believing I was an illegal alien and not a US citizen would have quickly lost credibility.

I had discussed the matter of my citizenship at great length with both Lagemaat and especially with Myhre prior to trial. And, I had discussed with both Lagemaat and Myhre the very points which are listed in the previous paragraph. I had sternly informed both parties that if Capuano makes ANY reference to my citizenship, or claims I was in the US illegally, then I will want her cross-examined on the matter to prove she did not truly believe, at any time, that I actually was an illegal alien.

Based on the foregoing, it should have been obvious to both Lagemaat and Myhre that Capuano's claims of believing I was an illegal alien were false. And since she did state that belief before the jury, Lagemaat should have cross-examined her to determine if that stated belief was sincere and rational. However, neither Lagemaat nor Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was lying.

trying --

Lagemaat:

Did you --

Capuano:

-- to take my kid and make me pay him child support while living in my country illegally.

Affidavit of Patrick Fox, 2019-01-29, ¶60

Capuano falsely testified I was trying to "take her kid".

However, I was the one who already had custody of Gabriel. Gabriel had been with me his entire life up to that point. Capuano had never had custody of Gabriel, other than the three months she had abducted him to Arizona and obtained temporary emergency custody based on false claims in 2011. It is completely false to say I was trying to "take Gabriel from her" because I already had sole physical custody - I could not have taken from her what she did not have. If anything, Capuano was the one trying to "take" Gabriel from me - and that is, in fact, exactly what Capuano did, first in August 2011, then in January 2013 by creating a situation whereby I would be removed from the US, by force and against my will, and Gabriel would be required to reside with Capuano, also by force and against his will.

For the most part, the proof that Capuano's statement is false is self-evident, as explained above. The history of Gabriel's custody and the fact that he had been with me his entire life, was well known to both Lagemaat and Myhre. As were the facts that Capuano had never had custody of Gabriel, and had not been present in his life, at all. Therefore, Lagemaat and Myhre must have known Capuano's statement was perjurious at the time she made it. However, neither Lagemaat nor Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.

And on the matter of seeking child support from Capuano: Yes, I absolutely did pursue that! She was absent from Gabriel's life for nine years and made absolutely no contribution during that time - financial or otherwise. Then, out of the blue, she comes back and expects to be treated "as an equal"; abducts Gabriel and runs off to another state with him; tells a bunch of lies in the out-of-state family court to get emergency custody; and applies for court ordered child support from me, even though she was working, making $68,000/year and I had just been released from Homeland Security custody, had no job, no income, and no assets. And, she argued in court that the child support should be based on my historical earning potential of $176,800/year rather than on my current circumstances Responsive Declaration, page 5, ¶13.

Lagemaat:

Did you report --

Capuano:

Yes.

Lagemaat:

Did you report Mr. Lauchner when you knew he was using methamphetamine?

Capuano:

No. No, he did himself in.

Lagemaat:

He was doing --

Capuano:

He damaged himself all by himself. He needed no help from me.

Lagemaat should have pursued this further. He should have pointed out that Capuano is saying Lauchner "did himself in", meaning his problems were the result of his own actions (or more correctly, the result of the police being made aware of his actions).

Lagemaat should have asked Capuano how that is different from me publishing the truth about her offensive conduct. Is it the website that's causing her problems or is it her conduct which is exposed through the website which is causing her problems? If I had created a website saying only nice things about her would that cause her problems? He should have pointed out to her that she hasn't lost employment opportunities because of the website, she lost opportunities because people became aware of the many horrible things she's done. Isn't it her own bad conduct which is causing her problems?

And so why is it okay to say Lauchner "did himself in", but it's not okay to say Capuano did herself in?

Lagemaat:

But he was breaking the law and you're concerned --

Capuano:

He wasn't --

Lagemaat:

-- you're concerned with laws. He was breaking the law while living in your home.

Capuano:

The drugs that were in the home he had stashed,

Affidavit of Patrick Fox, 2019-01-29, ¶61

Capuano falsely testified the drugs in her home were "stashed".

However, the Glendale and Scottsdale Police reports, which were on the website prove this is false. The Scottsdale Police report of Capuano's arrest shows the marijuana, which was still very illegal in Arizona at the time, was in the night stand next to her bed, not secured Scottsdale Police report, page 5. The Glendale Police report of the search warrant shows the crystal methamphetamine was in the garage, unsecuredGlendale Police report, page 12. Photos posted by Capuano show that she, Sage, and Gabriel did spend time in the garage Photo 1 (Desiree); Photo 2 (Desiree) - where the crystal meth was being used.

Both Lagemaat and Myhre had full access to the police reports, which were publicly accessible on the website. Therefore, they must have known Capuano was perjuring herself when she testified the drugs in her home were "stashed". However, neither Lagemaat nor Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.

and when he was breaking the law he was nowhere around. I couldn't even reach him. He wouldn't answer the phone, he wouldn't come back to the house. He was gone all the time.

Affidavit of Patrick Fox, 2019-01-29, ¶62

Capuano falsely testified that when Lauchner was breaking the law "he was nowhere around"; she "couldn't even reach him"; he wouldn't answer the phone, he wouldn't come back to the house; he was gone all the time.

However, police reports on the website, from the time Capuano was engaged to and living with Lauchner, and Capuano's own sworn statements and declarations in the family court, also on the website, prove that is false. On November 1, 2011, Lauchner was arrested outside the home; he had both of Capuano's children (including Gabriel) with him while he was engaging in committing felonies (passing counterfeit notes, forgery) Scottsdale Police report, 2011-11-01. Lauchner repeatedly possessed and used crystal methamphetamine in the very home Capuano claims he was not around when he was committing crimes Glendale Police report, 2012-09-26 - possession of crystal methamphetamine is a felony in the State of Arizona. Lauchner, himself prohibited from possessing or handling firearms due to his prior felonies, stole an assault rifle, then brought and stored that assault rifle in the very home Capuano testified he was never around when he was committing crimes ibid., page 11. Capuano admitted to the Glendale Police that she knew Lauchner had stored the rifle in the home; she also knew Lauchner had a long list of prior felonies and so, was prohibited from possessing the rifle ibid., page 20.

In particular, Lagemaat should have cross-examined Capuano on the incident when Lauchner was arrested with Gabriel in his care, and her defense of Lauchner's conduct in the emails with the subject "Legal request" on 2012-02-20 email dated 2012-02-20. This could have shown the jury that Capuano was aware of Lauchner's illegal activities and knowingly chose to support them and to put Lauchner before Gabriel, which contributed to my concerns for Gabriel's safety and well-being while in her care.

There is another police report and audio recording of an arrest of Lauchner, for shoplifting, on the website, where Lauchner attempts to call Capuano on the telephone Peoria Police report, Recording of arrest. She did not answer the call.

There are numerous emails between Capuano and Patrick, where Patrick informs her of recent criminal activity he had discovered Lauchner was involved in (typically through public arrest records), and Capuano would become hostile and defend Lauchner's conduct e.g. email dated 2012-02-20.

Both Lagemaat and Myhre knew of those emails and the police reports, which were publicly accessible on the website, so they must have known Capuano was lying when she testified. However, neither Lagemaat nor Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.

Lagemaat:

And you didn't turn yourself in when you were using marijuana without a marijuana card, did you?

Capuano:

No. It was the one thing I did that was illegal that I hated, and as soon as it became legal, I got my card.

Affidavit of Patrick Fox, 2019-01-29, ¶63

Capuano falsely testified that "as soon as medical marijuana became legal, she got her card".

However, Capuano's medical marijuana application, approval, and card, all of which were on the website, prove that is false. Medical marijuana was legalized in Arizona in November 2010, but Capuano did not apply for a medical marijuana card until October 2011 medical marijuana application, almost immediately after she was arrested and charged with possession of marijuana. Capuano continued to possess and use marijuana illegally from November 2010 through November 2011.

Both Lagemaat and Myhre had full access to and had reviewed all of the content on the website, including Capuano's medical marijuana application. Therefore, they both must have known Capuano was lying when she testified that she got her medical marijuana card as soon as medical marijuana became legal. However, neither Lagemaat nor Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was lying under oath.

Lagemaat:

That's the one thing you did that was illegal?

Capuano:

Yes.

Lagemaat:

You've never been arrested other than that?

Capuano:

For misdemeanour charges back when I was very young.

Lagemaat:

So you've done other things that were illegal.

Capuano:

Well --

Lagemaat:

That's not the one thing.

Capuano:

Working in an establishment that sold alcohol and getting arrested at the establishment, yes, that's -- that's --

Lagemaat:

Arrested because they sold alcohol?

Capuano:

The -- one of the arrests that I had.

Lagemaat:

What was the other one?

Capuano:

But that was at 18 years old.

Lagemaat:

Well, yeah, but the reason I'm asking you, because you said the marijuana was the one thing you've done illegal.

Capuano:

Yes.

Lagemaat:

So there was more things.

Capuano:

I worked in a strip club that got raided. That was one charge at 18 --

Lagemaat:

Okay.

Capuano:

-- years old.

Lagemaat should have pursued this further. He should have crossed Capuano on why she stated in the international news media, in multiple interviews, that everything on the website was "all lies"; why she led the Canadian and US public to believe I had created a website full of lies about her, when in reality everything I said on the website was actually true Pinellas Count (FL) Sheriff's report of undercover operation and arrests.

He also should have pointed out to her that on direct, she deliberately mislead the jury by stating "..it had the name of a strip club that I apparently worked at..." p55l22-23. By saying "...apparently worked at...", she was implying she was not familiar with the particular strip club and had not worked there.

This would have shown the jury that there is no limit to how far Capuano will go with her lies - even to the point of blatantly lying on international news and on television.

This would also have shown the jury that there is a very good chance the reason Capuano wants the website taken down is because it proves that SHE was the one that lied in the news media and that, in fact, everything I have been saying is actually true.

And then the only other charge was marijuana based.

Lagemaat:

So you knew that him being across the border, deported, would be much easier -- or much more difficult for him and easier for you to fight custody battles in court in California; correct?

Capuano:

Him being out of the country meant that I probably would not have to fight many more custody battles, yes.

Lagemaat:

And you knew that if it did come down to a custody battle, it would be difficult for him because, look, he's been deported three or four times. That -- that would be difficult for him in getting custody; correct?

Capuano:

No. The judge didn't really care about that.

Lagemaat should have pursued this further. He should have pointed out I lost custody of Gabriel IMMEDIATELY after being deported and that since that time the judge has refused to allow Gabriel to return to my care even though Gabriel clearly told the court that's what he wanted.

The reasonable inference from that would have been that the judge did, in fact, care about me being in the country illegally and being deported. It also would have shown that those very harsh consequences - of being removed from his son's life - were the direct result of Capuano's very deliberate actions.

This is also an example of how Capuano incessantly tries to portray herself as the perpetual victim. Even though it is so clearly obvious that the family court judge DID care about me being deported, she will still try to present that as being an attack against her.

Lagemaat:

I'm going to suggest at this time again that you never, during this time, feared him. This -- this was just a big game, and you've said won and lose; is that correct?

Myhre:

What time?

Capuano:

Thank you.

Lagemaat:

During this time that -- that we've gone through all this evidence, the emails that we started with, the ones Crown read in, the ones I read in, these family law hearings, these -- these tips to Immigration, I'm going to suggest this was one big game to you, and you've used the term "win and lose", and that at this point you're winning. You've had him deported, you're winning; correct? Because you were frustrated in the emails, and you've said that. That wasn't getting you anywhere, insulting, demeaning, insulting his manhood, his stature, his family, his intelligence, his maturity, and you weren't winning. But now you're winning, correct? And you've used that term.

Capuano:

You're mixing up dates and times and timelines of events pretty severely.

Lagemaat:

I'm not talking about timelines and dates --

Capuano:

During 2013, when I was going through a custody battle with him, there -- I was not insulting his manliness, I was not insulting his stature, I was not calling him names. I was fighting a custody battle in 2012.

Affidavit of Patrick Fox, 2019-01-29, ¶23

Capuano falsely testified, repeatedly, that prior to the period of the emails which were being presented to the jury, that is, prior to 2014, I was frequently and consistently verbally abusive and that prior to January 2015 she had passively accepted that abuse without reciprocating TR 2017-06-13 p10l29-35; p15l16-21; p15l38-42; p35l2-7; TR 2017-06-14 p8l20-23, p8l29-32; p24l8-14; p29l39-42; p38l33-40; p43l46-p44l4; p51l29-39; p52l18-21; p52l41-p53l2; p65l21-26; p66l22-27, p66l32-37; TR 2017-06-15 p5l47-p6l24; p35l30-43; p36l11-12, p36l18-20; p36l39-41.

However, those claims are entirely contrary to the actual emails between Capuano and myself from 2011 through 2013, as is proven from the following few email conversations during that time:

2012-02-02 - Further curiosity
2012-02-08 - Forms for ex parte hearing
2012-02-20 - Legal request
2012-04-01 - Gabriel's necessities
2012-04-18 - Gabriel's iPod, and Sage's calls
2012-04-23 - Gabriel's shoes
2012-05-08 - Gabriel's medical bills
2012-05-17 - Mother's day
2012-05-21 - Medical insurance deductible
2012-06-05 - Gabriel's school
2012-06-12 - Gabriel's graduation/culmination ceremony
2012-06-14 - Desiree, your trip is around the corner
2012-06-29 - Gabriel's school supplies
2012-07-02 - Gears of War 3
2012-07-08 - Gabriel's school supplies
[etc…]

Lagemaat and Myhre knew of all of the emails from 2011 through 2013. They knew most of those email conversations began with me attempting to discuss a legitimate subject pertaining to Gabriel, then Capuano becoming belligerent and insulting for no apparent reason. I clearly expressed my desire, in open court, for Capuano to be cross-examined on many of those emails, prior to trial.

In spite of the foregoing, Lagemaat refused to cross-examine Capuano on ANY of the emails from 2011 through 2013.

Although both Lagemaat and Myhre knew of the content of all of the emails prior to 2014, and therefore knew Capuano had committed perjury each of the 18 times she repeated this claim, neither of them made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.

In addition to proving Capuano was perjuring herself with this claim, I believe cross-examining her on the emails from 2011 through 2013 would also have proven that the truth of the matter is that Capuano was the one attacking and insulting me for years, and I was the one passively tolerating it, and going out of my way to help and accommodate her; and that it was not until 2014, AFTER she had me deported and took away my child, that I began fighting back. But Lagemaat and Myhre insisted against presenting any of that to the jury. However, many of those emails were submitted by me at sentencing (and, of course, Holmes completely ignored them).

In 2013, when he was deported, I got custody of our son and, yes, I called a tip line. Yes, the intent was to have him removed from the country. Yes, he came back multiple times and, yes, I called each time. I did end up with custody.

When Desiree gets mad she just says whatever vindictive, petty, cruel things are in her head. She simply doesn't care who knows how horrible and despicable she is ... when she's mad.

Here we see her not only admitting that she called ICE repeatedly, to get me deported repeatedly, but that she did so in order to cause me to lose custody of Gabriel. Not because she wanted custody of him - just because she didn't want me to have custody of him.

And notice, the next sentence: "But even then he got visitation...". That shows it was not enough to her that I not have custody, she wanted me to also not have visitation. She wanted me to have nothing to do with Gabriel at all.

And January 2013 was not the first time she had done this! She tried the same thing in 2011 when she abducted Gabriel to Arizona.

But even then he got visitation

Lagemaat should have pursued this statement further. The way Capuano phrased it ("but even then") shows that she was very upset about me getting visitation, that she was expecting I would not have. At this point in the cross, Capuano was very agitated and obviously speaking frankly. With a little more pushing Lagemaat, likely, could have gotten Capuano to admit that the only reason she called ICE was to get custody of Gabriel by default, or to get back at me (revenge).

The way Capuano phrased this (as well as her routinely speaking of "winning" in the family court, and her consistent refusal to allow Gabriel to visit unless the court ordered it) makes it clear that Gabriel was nothing more than a pawn for her to try to attack me.

Lagemaat also should have crossed her on her consistently refusing to allow Gabriel to visit unless the court ordered her to. These are contrary to Capuano's claims that she "allowed" visitation and that she wanted Gabriel to have a relationship with both parents.

and I never went after him for child support.

Lagemaat should have pursued this further. He should have pointed out that child support is for the benefit of the child - not the parent. Didn't she want the best for Gabriel?

Lagemaat also should have pointed out that Capuano never had to "go after [me]" for child support because I immediately and proactively started providing Gabriel financial support as soon as I started working. And that the amount I was providing was higher than the statutory amount the family court would have determined.

Lagemaat also should have crossed Capuano on the emails where she decided not to allow me to provide things for Gabriel while he's in her care email dated 2014-01-18. He should have asked her what kind of mother would refuse to let her child have financial stability and a better, more comfortable life.

Capuano likely would have responded that me providing for Gabriel was creating an imbalance between the children in her home and she couldn't have that. Lagemaat then could have pointed out that if she allowed me to provide for Gabriel then she would have had more resources to better provide for Sage as well. He should have asked her whether she'd considered that. He should have asked her why she didn't want her children to have a more comfortable life.

Capuano likely would have said that money is not that important to her, that I was spoiling Gabriel, and that she didn't want her children thinking material stuff was all that mattered. Lagemaat then could have confronted her with the emails from 2011 and 2012 where she belittled me about my inability to provide for Gabriel, and bragged about how she could provide him a much more comfortable life emails dated 2012-01-17; 2012-04-23; 2012-06-29; 2012-06-29; 2012-06-29; 2012-09-09. That would have shown the jury Capuano's hypocrisy and shown that her current arguments are insincere.

The insults and the bantering didn't happen until late 2014, and none of that happened until after the website went up.

Affidavit of Patrick Fox, 2019-01-29, ¶23

However, those claims are entirely contrary to the actual emails between Capuano and myself from 2011 through 2013, as is proven from the following few email conversations during that time:

2012-02-02 - Further curiosity
2012-02-08 - Forms for ex parte hearing
2012-02-20 - Legal request
2012-04-01 - Gabriel's necessities
2012-04-18 - Gabriel's iPod, and Sage's calls
2012-04-23 - Gabriel's shoes
2012-05-08 - Gabriel's medical bills
2012-05-17 - Mother's day
2012-05-21 - Medical insurance deductible
2012-06-05 - Gabriel's school
2012-06-12 - Gabriel's graduation/culmination ceremony
2012-06-14 - Desiree, your trip is around the corner
2012-06-29 - Gabriel's school supplies
2012-07-02 - Gears of War 3
2012-07-08 - Gabriel's school supplies
[etc…]

In spite of the foregoing, Lagemaat refused to cross-examine Capuano on ANY of the emails from 2011 through 2013.

And I never called for harassment until after the website went up. I never called for fear of my life until the email that said he was -- he thought about shooting me.

Affidavit of Patrick Fox, 2019-01-29, ¶64

Capuano falsely testified she she never called for fear of her life until the email where I said I thought about shooting her TR 2017-06-15 p35l44-46; p36l13-18.

However, the emails on the website; the Sahuarita Police reports; the RCMP reports from July 2015; Capuano's declaration in support of her request for an order of protection and her statements at the order of protection hearing in December 2015; all prove that is false. The first time Capuano made any mention of being afraid for her safety - let alone afraid for her life - or of feeling threatened was AFTER speaking with CBC in January 2016 - more than a year after she had read and responded to the email in question. Also, Capuano's claims of being afraid for her life were purportedly made to the news media, NOT to any court or law enforcement agency. Though, in the CBC segment which aired and was published, it was only the CBC reporter, Natalie Clancy, who stated "Talk of shooting left Capuano fearing for her and her fiance's safety". There is no evidence that even at THAT point Capuano actually expressed any fear for her safety from me. If Capuano had actually said that to CBC, then CBC would have included that sound bite in the segment.

The fact is, Capuano did not claim to have any fear for her safety from me until more than a year AFTER reading and responding to the very email she testified was the basis for that fear. Moreover, Capuano never called, or otherwise initiated contact with any law enforcement agency claiming to fear for her safety from me. In, and since, June 2016 it has been the RCMP and Victim Services that have contacted Capuano about proceeding with a criminal harassment charge against me - it was not Capuano who contacted the RCMP in June 2016, complaining of harassment or fear for her safety.

Also, Capuano admitted in her own testimony that she was only seeking the order of protection in Arizona because she believed it was required in order to get the website taken down TR 2017-06-13 p64l42-p65l1; TR 2017-06-15 p41l47-p42l2.

Capuano also discussed that in greater detail in her 2016-07-13 RCMP interview, at paragraphs 822-826 RCMP interview ¶822-826, 2016-07-13.

And, as a very critical point of fact, I never stated in that email, or at any other time, that I "thought of shooting" Capuano. That is Capuano's own clear and gross misrepresentation of the wording of that email. If anything, it was our son who had "thought of shooting" Capuano - he asked the question, and I was merely responding to his question.

Both Lagemaat and Myhre knew of all of the emails, police reports, court declarations, and statements to the news media which proved Capuano did not, at any time, sincerely fear for her life from me. Therefore, both Lagemaat and Myhre must have known Capuano was lying when she made this statement. However, neither Lagemaat nor Myhre made any attempt to inform the court or the jury that they had reason to believe Capuano was committing perjury.

Lagemaat:

Two --

Capuano:

So, no, what you --

Lagemaat:

Two --

Capuano:

-- said was incorrect.

Lagemaat:

2014 --

Capuano:

Yes.

Lagemaat:

-- winter visit.

Capuano:

Yes.

Lagemaat:

Do you recall what the -- when that was? It was -- I'm assuming was it his -- G.'s Christmas vacation from school?

Capuano:

Yes. And again, that is when the bantering started, as I said.

Affidavit of Patrick Fox, 2019-01-29, ¶23

However, those claims are entirely contrary to the actual emails between Capuano and myself from 2011 through 2013, as is proven from the following few email conversations during that time:

2012-02-02 - Further curiosity
2012-02-08 - Forms for ex parte hearing
2012-02-20 - Legal request
2012-04-01 - Gabriel's necessities
2012-04-18 - Gabriel's iPod, and Sage's calls
2012-04-23 - Gabriel's shoes
2012-05-08 - Gabriel's medical bills
2012-05-17 - Mother's day
2012-05-21 - Medical insurance deductible
2012-06-05 - Gabriel's school
2012-06-12 - Gabriel's graduation/culmination ceremony
2012-06-14 - Desiree, your trip is around the corner
2012-06-29 - Gabriel's school supplies
2012-07-02 - Gears of War 3
2012-07-08 - Gabriel's school supplies
[etc…]

In spite of the foregoing, Lagemaat refused to cross-examine Capuano on ANY of the emails from 2011 through 2013.

And I never called for harassment until the website went up, and I never called for physical harm of my safety until after the email was sent that said he was -- he thought of shooting me. That is when the physical fear for my safety started. Never called for that beforehand.

Affidavit of Patrick Fox, 2019-01-29, ¶64

Capuano falsely testified she she never called for fear of her life until the email where I said I thought about shooting her TR 2017-06-15 p35l44-46; p36l13-18.

Capuano also discussed that in greater detail in her 2016-07-13 RCMP interview, at paragraphs 822-826 RCMP interview ¶822-826, 2016-07-13.

And I never called for harassment before the website, even with all of the emails and the custody battle. I put up with a lot.

Lagemaat:

But you've said -- you've said in evidence here you've been harassed for years.

Capuano:

Well, yes, to me it's harassment. And even in some of those emails.

Affidavit of Patrick Fox, 2019-01-29, ¶23

However, those claims are entirely contrary to the actual emails between Capuano and myself from 2011 through 2013, as is proven from the following few email conversations during that time:

2012-02-02 - Further curiosity
2012-02-08 - Forms for ex parte hearing
2012-02-20 - Legal request
2012-04-01 - Gabriel's necessities
2012-04-18 - Gabriel's iPod, and Sage's calls
2012-04-23 - Gabriel's shoes
2012-05-08 - Gabriel's medical bills
2012-05-17 - Mother's day
2012-05-21 - Medical insurance deductible
2012-06-05 - Gabriel's school
2012-06-12 - Gabriel's graduation/culmination ceremony
2012-06-14 - Desiree, your trip is around the corner
2012-06-29 - Gabriel's school supplies
2012-07-02 - Gears of War 3
2012-07-08 - Gabriel's school supplies
[etc…]

In spite of the foregoing, Lagemaat refused to cross-examine Capuano on ANY of the emails from 2011 through 2013.

Finding out how I vote based off of my driver's licence and asking me to confirm if I've changed my voting registration out of the blue, no prompting, that's scary. Telling me that he's got private investigators following me, that's scary.

Lagemaat should have pursued this statement further. The Florida voter registrations are public record - they're on the Internet. Everyone has access to them. That's where I got the information from. Lagemaat should have suggested that if Capuano didn't want her information publicly accessible on the internet then she shouldn't put it publicly on the internet.

He should have pointed out that the public voter registration information had nothing at all to do with her driver's license, and he should have asked her why she says I obtained the information from her driver's license. This could have shown the jury that much of what Capuano is claiming is based on absolutely nothing - she's just making it up as she goes.

Lagemaat should have pressed Capuano on exactly why it's "scary" that someone would find her publicly accessible voter information on the internet. Her claim of it being "scary" is overly vague.

That happened in 2012.

Lagemaat:

None of that's against the law, though, is it?

Capuano:

No, but it's still scary. And to me it's harassment.

Lagemaat:

And you were scared at the time, and this is also the time when -- I'm not going to go through them again, where there's the emails.

Capuano:

No, that's 2014.

Lagemaat:

2014. You were scared in 2014.

Capuano:

Yes. That was when the harassment started.

Lagemaat:

And that's also when you were partaking in -- in this what we -- we're calling banter; correct?

Capuano:

Late 2014. Months after the website went up.

Affidavit of Patrick Fox, 2019-01-29, ¶23

However, those claims are entirely contrary to the actual emails between Capuano and myself from 2011 through 2013, as is proven from the following few email conversations during that time:

2012-02-02 - Further curiosity
2012-02-08 - Forms for ex parte hearing
2012-02-20 - Legal request
2012-04-01 - Gabriel's necessities
2012-04-18 - Gabriel's iPod, and Sage's calls
2012-04-23 - Gabriel's shoes
2012-05-08 - Gabriel's medical bills
2012-05-17 - Mother's day
2012-05-21 - Medical insurance deductible
2012-06-05 - Gabriel's school
2012-06-12 - Gabriel's graduation/culmination ceremony
2012-06-14 - Desiree, your trip is around the corner
2012-06-29 - Gabriel's school supplies
2012-07-02 - Gears of War 3
2012-07-08 - Gabriel's school supplies
[etc…]

In spite of the foregoing, Lagemaat refused to cross-examine Capuano on ANY of the emails from 2011 through 2013.

Lagemaat:

Well, Ms. Capuano, the emails I started on were January 2014, not late 2014.

Capuano:

He hadn't put the website up in January of 2014.

Lagemaat:

That's the -- I'm talking about the emails I --

Capuano:

Which one?

Lagemaat:

-- I was going through. So 2014 winter visit for Christmas vacation.

Capuano:

Yes.

Lagemaat:

As per the court order; correct?

Capuano:

Yes.

Affidavit of Patrick Fox, 2019-01-29, ¶4

However, Capuano admitted in her testimony, she "had full control over visitation and determining that visitation" TR 2017-06-15 p2l29-30.

After admitting she had "full control over visitation" Capuano continued to testify she was required, under court order, to communicate with me and to allow Gabriel to visit me.

Lagemaat:

So you'd had Mr. Fox -- not had Mr. Fox deported, but you'd made -- you'd made the calls that had resulted in him being deported, yet you -- still in 2014, you followed the court order, you sent Gabriel up there.

Capuano:

Yes.

Lagemaat:

Did you not think to try to take away that visitation? Were you not worried of what would happen up there? You've said how worried you were about Mr. Fox --

Capuano:

Yes.

Lagemaat:

-- yet you sent your son up there to be with him --

Capuano:

Yes.

Lagemaat:

-- correct? 2015 summer visit. And it would seem, from your evidence in direct, that by 2015 would you agree things had escalated --

Capuano:

Yes.

Lagemaat:

-- in the communications in -- and the communications being the emails because that was the only communication. And in May 2015, you went through this in direct evidence, he sent you an email with his PAL attached.

Capuano:

Yes.

Lagemaat:

Which is another acronym. I -- I don't know what it stands for. It's a firearms licence; correct?

Capuano:

Up here in Canada, yes.

Lagemaat:

Yes. So you knew he had firearms and you've said you were afraid knowing, and alarmed and -- knowing he had this identity and firearms, but you still sent your son up there --

Capuano:

I was still required under law.

Affidavit of Patrick Fox, 2019-01-29, ¶4

However, Capuano admitted in her testimony, she "had full control over visitation and determining that visitation" TR 2017-06-15 p2l29-30.

After admitting she had "full control over visitation" Capuano continued to testify she was required, under court order, to communicate with me and to allow Gabriel to visit me.

Lagemaat:

-- to spend the summer with him.

Capuano:

Yes.

Lagemaat:

Correct. So you -- I -- I suggest you weren't really afraid of anything at that time because your son, in your evidence, means so much to him -- to you, you wouldn't have sent him up there if you thought there was any danger, would you?

Capuano:

I don't think Richard's going to hurt Gabriel.

Lagemaat:

What about keep him?

Capuano:

That is a risk, yes.

Lagemaat:

But you sent him. You weren't afraid.

Capuano:

I had to. At that point he hadn't kept him --

Lagemaat:

And we --

Capuano:

-- so I had no basis to change that in the court yet.

Affidavit of Patrick Fox, 2019-01-29, ¶4

However, Capuano admitted in her testimony, she "had full control over visitation and determining that visitation" TR 2017-06-15 p2l29-30.

After admitting she had "full control over visitation" Capuano continued to testify she was required, under court order, to communicate with me and to allow Gabriel to visit me.

Lagemaat:

And we went through the emails where we talked about the definition of "itinerary". You never got that return ticket. You sent him up there on a one-way ticket; correct?

Capuano:

Yes.

Lagemaat:

Yet you had all these fears, you knew he had firearms, you knew he had a new identity, and you sent your son there on a one-way ticket. Yes or no?

Capuano:

Yes.

Lagemaat:

I want to move on a bit to the GoFundMe page which you talked about in direct evidence. I ask you, if this was as terrible for you and your family, everybody, as you make it out to be, and you say what a terrible person Mr. Fox is, why didn't you just go underground? You're -- you work in IT, you've done some court applications on your own, which we've seen, you've -- you're not -- you're not a -- you're a sophisticated person as far as the internet. Why didn't you just change your name?

Capuano:

It's public record.

Lagemaat:

If you change your name, it's public record?

Capuano:

Yes.

Lagemaat:

Okay. So you looked into that?

Capuano:

Yes.

Capuano seems to be misdirecting here. And she's false about the name change being public record. If she tells the court she needs to change her name to avoid or prevent further harm or harassment the court can order the record sealed. This shows that she, in fact, didn't look into it all - or she's lying.

Submissions Regarding the Admission of the Recording of Desiree Laughing and Joking with the RCMP

Having completed his cross-examination and not brought up the recording, I insisted Capuano be confronted on it to show the jury that, in reality, she thinks this whole thing is just a big joke.

Lagemaat fervently argues that he believes because Capuano didn't contradict the statements she made in the interview, he did not have a legal basis to confront her with the recording.

I argue that the critical point is not necessarily what she said in the interview, but that fact that she was laughing and joking about it. That, and the fact that throughout the interview she frequently and rapidly switched between laughing and appearing to cry, showing that any emotions she appeared to exhibit during her testimony on the witness stand have just been an act to manipulate the jurors.

Myhre conceded that some of the issues I was raising do seem to have some relevance.

Ultimately, Holmes agreed that in a 486.3 appointment, the self-represented defendant has control over the cross-examination and since the concerns I raised do seem to have some relevance regarding Capuano's state of mind and credibility, specific segments of the recording should be played for the jury.

Lagemaat:

Yes, My Lady. There is one piece of evidence that Mr. Fox was hoping would go in through my cross-examination. I knew that all along.

It's -- it's a statement of the complainant and -- and I tried to impeach her on it several times, but she accepted it, and I never raised the statement and Mr. Fox will at this time make a submission on that piece of evidence.

Judge:

Can I just, first of all, Mr. Lagemaat, ask you to tell me which statement?

Lagemaat:

It's -- Ms. Capuano made four statements to the police and it was the last statement she gave on Wednesday, July 13th, 2016, at 1323 hours to a Corporal B. Wilcott [phonetic], who I believe -- oh, yeah, Burnaby RCMP.

Judge:

And what is it you say you cross-examined on and she accepted?

Lagemaat:

I had -- I had cross-examined her on a couple of things she said in the state -- the statement and -- and she accepted them, and if she didn't accept them I was going to put the statement to her, but I never had an opportunity to, because she -- there was a couple of areas I went into and she accepted them, so...

Judge:

Can you remind me what they were?

Lagemaat:

I'm not sure if I can, My Lady. Just let -- let me have a quick look.

Judge:

Was this today or yesterday?

Lagemaat:

One of them was where she took -- and -- and this was the main area, where -- where she -- Ms. Capuano took some pleasure in the fact that her tip to ICE had resulted in Mr. Fox being deported, and I asked her, "Did you take pleasure in that," and she agreed she had, and I said, "Isn't it true you actually wished you could be" -- these aren't the exact words, but "You wished you could be in the courtroom or the courthouse when they came and got him," and she accepted that, and I left it at that.

And again I -- I can tell My Lady that I was going to -- if she denied that, I was going to seek to play the audio of the statement and this is when Mr. Fox's submissions will be, from my understanding, because in the audio there is some laughing, which is even transcribed as brackets laughing.

And -- and that was the only reason I was going to try to play a part of that, a small portion of that statement, if she denied the fact that she was laughing and took enjoyment in the fact that her call resulted in Mr. Fox's deportation.

Judge:

All right. I am just looking for my notes. I remember that portion of the cross-examination. Was there another portion?

Lagemaat:

No, My Lady, that -- that was it. Oh, and --

Judge:

I think --

Lagemaat:

-- I apologize.

Judge:

My note is that she said -- you asked her was she amused and she said she probably laughed, but not in amusement.

Lagemaat:

Mm-hmm. There -- there was one area -- other area, My Lady, and that was the last -- the second to last line of questioning about Mr. Fox previously having or owning firearms, and it was about her knowledge that in 2005 or 2006 he did have a firearm in Phoenix and she accepted that also, that that came from her mother, and that we got into a discussion whether it was owning or having and -- but that's -- if she had denied knowledge of that, I would have taken her to the statement.

And that's the two areas where I was -- would have referred to the statement, if she had not accepted what I put to her.

Judge:

And the issue that may engage the question of your role as appointed counsel is whether there should be further cross-examination?

Lagemaat:

No, if I could interrupt --

Judge:

All right.

Lagemaat:

-- there's no question about my role in cross-examination. That's -- we finished that.

Mr. Fox, and I believe he'll tell you this, has no -- no issues with my cross-examination. I'm only bringing this up because he is going to make a submission to you now about -- that he feels that statement as a whole should be entered, and I'm not sure what the basis of that submission will be, but he is going to make a submission and I don't believe he sees it as an issue with my cross-examination.

He just wants that statement in -- to be heard by the jury in its entirety and he -- he'll -- I expect he'll tell you why.

Judge:

All right. Then Mr. Fox, I'll hear from you, please.

Fox:

Okay. In -- not the entire statement, the entire -- the entire recording is almost two hours, so it's the second hour of a -- of the recording.

There are frequent statements that Ms. Capuano makes as she is speaking with the RCMP where her demeanour and her overall character throughout the -- the statement is extremely contrary to what she is trying to present here in court today and what she has presented on the news media.

For example, when she was talking about the incident with punching herself in the stomach to try to cause a miscarriage, that she claims is not true, she's very somber when she speaks about that normally, but in this interview she's actually laughing and joking with the officer about it and talking about how she joked with Gabriel about it, as if it's all just a big game.

And I think that, given it's a criminal harassment case, not only fear for her safety is a -- well, an element of the offence, but the credibility of the complainant is at least in this case very, very significant.

For that reason and for the other comments that she makes in here, and the laughing and the joking, I think it is critical for the jury to be able to see what she really thinks of these issues outside, when there is no cameras on her and when a jury is not looking at her. There's also a statement that she makes at --

Judge:

Now, just before you go on --

Fox:

I'm sorry.

Judge:

-- -- you say where -- when there are no cameras on her.

Fox:

Oh, meaning the news media.

Judge:

But there were -- usually the RCMP will have a video camera.

Fox:

This one was just audio recorded and also this was conducted in her home.

Judge:

All right.

Fox:

The -- the other interviews that she had done with the RCMP, one was done from her attorney's office -- I'm not sure where the others were done from, but they were all done on the telephone.

There is another point in -- in this interview where she openly admits that -- well, first she says that she has proposed to me numerous times, that if I would just take the website down then everything could go back to normal, and then she goes on to say that she has no resentment and if I would just stop then Gabriel would continue coming or go back to coming out here for visitation, which seems to me a very clear admission that she is blatantly using Gabriel to try to get me to take down the website or engage in any other type of conduct.

Now, that of course doesn't have anything to do with the laughing and joking, but I thought it was quite important that that should be brought up.

Judge:

Can you tell me a bit more about why -- I think there are two issues I need to deal with here. It does seem to me that particularly -- particularly that last point is something in which it's your wish that there be cross-examination on that and Mr. Lagemaat has not cross-examined on that.

Fox:

I -- I would agree with that, but I wouldn't say that I think that Mr. Lagemaat was deficient in that respect at all. This was something that I myself just noticed very recently and so perhaps it just fell through the cracks.

Judge:

Well, perhaps one reason that it may not have been picked up is that it doesn't seem -- and I'll hear from you further, but it doesn't seem to me to go the issues that the jury needs to decide.

The issue in this trial is not whether Ms. Capuano was using Gabriel as a pawn inappropriately. The issue is did the website and the other communications amount to criminal harassment, and it's quite possible that both could have coexisted, that she in theory could have used Gabriel as a pawn and the website could have resulted in criminal harassment. They're -- what I am trying to say is they're separate issues.

Fox:

Sure.

Judge:

So I am having trouble seeing how that would be relevant to the issues in this trial.

Fox:

Okay. I should have explained -- or I should have mentioned also that this is one of the claims that Ms. Capuano has made against me repeatedly, I'm not sure if she did while she was on the stand testifying though, that I have been trying to use Gabriel against her and using him as a pawn.

So I thought that this might be another example of how she is repeatedly accusing me of doing the things that she is actually doing to me, and meanwhile there is no evidence that I'm actually doing any of the stuff that she's claiming.

So that -- that was one of the reasons I thought that that might be significant, but certainly the most important aspect I think of this recording is her overall demeanour as she is going through and explaining the -- we're talking about the very things that while she's on the stand she was reduced to tears and getting very emotional and choked up about, yet when she doesn't believe people are watching her she is only laughing and joking, like I said there's really nothing to it.

Judge:

All right. Thank you. Now, doesn't that engage the question of what you would like Mr. Lagemaat to cross-examine on?

Fox:

Well, I believe Mr. Lagemaat's position on it was that he could only have it admitted if there was a prior conflicting statement, but what I'm hoping to argue here or to persuade the court of is that it's more a question of her demeanour and her mindset, as she was making these statements, as opposed to whether or not they conflict with what she is verbalizing on the stand now.

Judge:

All right. Thank you.

Fox:

I should also mention, though, that rather than making a decision about proceeding with allowing it before the jury, at this point I would probably request that the court listen to it first and then make a decision, or at least listen to some of the more [indiscernible] parts.

Judge:

Mr. Lagemaat, it seems to me that in a sense Mr. Fox is saying that there's more inconsistency in the statement than you cross-examined on.

Lagemaat:

He is saying there is inconsistency in her demeanour, between her demeanour at the time of the statement and her demeanour here today, and I would not have chosen that line of cross-examination and I have listened to the recording many times.

Judge:

All right. I am going to ask you to clarify. Is it your understanding that the law would permit you to cross-examine on essentially inconsistent demeanours at different times --

Lagemaat:

If -- if I was going to cross-examine on it I would have done what I did with the -- her fly on the wall comment. I would have said did you find that amusing, that he had been deported, which is what I did, and did you laugh, and she agreed, not in precisely those words, and that's how I would have done it and -- and in my view that was the most significant example in the statement of her taking it lightly and I did go to that.

Judge:

Thank you. Mr. Myhre, do you have anything to contribute?

Myhre:

Yes, and on the point of cross-examining her on her demeanour during the statement it seems to me as a general proposition that certainly could be relevant,

Now this is something! The defense lawyer (Lagemaat) is arguing against playing the recording, claiming he couldn't find any legal basis for it. But the prosecutor (Myhre) is admitting that the significant contrast in her demeanor may be relevant and she should be cross-examined on it.

I believe what happened here was the Lagemaat and Myhre had an agreement to not present the recording to the jury. They figured, as lawyers usually do, that because I'm not a lawyer I can't possibly know anything about the law and can't possibly make a coherent arguement. But after seeing how things had been going over the past few minutes, Myhre realized any argument against plaing the recording is just going to make him look as stupid as Lagemeet looks at this moment. So he threw Lagemaat under the bus.

but the further those purported times of amusement are from the issues that we're dealing with the less relevant they get, and so if -- my submission would be that if the only example is Ms. Capuano laughing it sounds like about how ridiculous the notion that she was punching herself in the stomach was, we're just so far removed from the time and the issues of this trial that it's -- it just has no relevance. If we're talking about things like --

Judge:

I think another area of concern for Mr. Fox was --

Myhre:

Her -- Ms. Capuano using Gabriel.

Judge:

Yes, and the business about laughing if she had the opportunity to see him removed from the country.

Myhre:

As I say I -- I think that would be proper to put to her in -- in either format. There's nothing improper about that. That's -- that's one of the turning points in this -- the whole --

Judge:

I think we're struggling a little bit with what the issues are, Mr. Fox. You -- you've said that in -- Ms. Capuano in the police statement was talking about things that had -- that reduced her to tears in this courtroom, but seemingly caused her to laugh when she was speaking with police officers. What kinds of things?

Fox:

I'm sorry, may I just -- one moment.

Do you have that list that I gave you with the timing positions where various [indiscernible/2:48:20 PM].

Another -- another thing that I think is very relevant or very interesting about this interview, My Lady, is --

Judge:

Well, can we just deal with this one question first?

Fox:

Oh, sure, yes, I'm sorry. Oh, no, when I gave you the transcript of it, it was -- it had highlights in yellow.

Lagemaat:

I -- I gave you that transcript back.

Fox:

Yeah. I gave you the transcript [indiscernible].

Lagemaat:

I've given -- I gave you the entire transcript.

Fox:

Okay. Well, I'll start with this. So an example then would be where she talks about wishing that she could have been in the courthouse and what she says is that -- oh, I have it here -- "And I called the FBI agent that morning," and then it says chuckles here, but actually it was much more than chuckles. "I wish I was a fly on the wall," and then she laughs some more.

Down below on the same page, she laughs through an entire section here and says [as read in]:

So if you can picture it, there was Richard at the courthouse arguing with him, demanding that his hearing is supposed to happen and trying to figure out why it's not scheduled, knowing that he's there illegally and the FBI walking in and arresting him.

There's another part where she's also laughing about the scars that she has, from having to deal with me over the years, and then the officer joins in at that time and starts laughing with her.

And I apologize, I wish I had more organized notes on this at this point. Then when she is talking about the allegations of the LinkedIn profile, she says [as read in]:

Um, but you might not want -- you might not want to put up on your LinkedIn profile that you're a stripper --

I guess she's referring to what other people were saying to her.

-- and I said I don't -- I don't -- what you're talking about. She said your LinkedIn profile it says you're a stripper and you smoke pot and I'm not, she says.

[Indiscernible]. Now, as she was saying that she was also laughing as well, but there I have the notes.

Now, there is a point in the interview as well, where she is talking about getting the order of protection in Arizona, and the Arizona order of protection is supposed to be based on solely a person's credible fear for their safety from the other party, and she admits in this interview very likely that her only goal with that was to try to get the website taken down and it had nothing at all to do with her safety. She did make a brief reference to that in her testimony.

And there is one point where she's laughing and then immediately moments later crying -- or no, sorry, she was crying about the quote unquote "sick people that would read the website and potentially harm her children," and then she immediately goes into laughing about something which is unknown, even hard to tell what she is saying on the recording, and she also laughs and makes jokes about how it is that I seemed to frequently know more about her legal proceedings than she did, I would often know about coming hearings before she did.

So on the one hand here in court she's -- she's claiming before the jury that that was very frightening for her, that I was able to know that before she did even, but then in this recording she's laughing and joking about it.

Oh, yes, and she also finds it very, very funny that the family court in California kept delaying my petition for the child support, and she makes a number of jokes about that and laughs about that as well.

And those were -- those were the ones that I wrote down on here, the ones that I wanted to bring up in the 486 hearing.

Judge:

And you're saying you would like Mr. Lagemaat to cross-examine on each of those points, because some of them he didn't touch on.

Fox:

If people with much more knowledge and experience than myself, such as the attorneys and yourself, believe that those are areas that should be cross-examined then I would definitely like that to happen as well, but I -- I think that the most important thing that I would hope to get from this would be for the members of the jury to see how Ms. Capuano is when they're not sitting there looking at her, in other words how the real Ms. Capuano is.

Judge:

All right. Thank you.

Fox:

But may I just point out one other thing that I would hope to show the jury with this is the frequency and the quickness with which Ms. Capuano can transition from crying about one thing at one moment -- I mean literally crying -- to laughing almost hysterically about something a few moments later and then going right back to crying again, which I think really goes to her credibility.

When they see this or when they hear this, it's very clear that there is not a lot of sincerity to the emotions that she is expressing, so then I think projected that onto the testimony she provided here and question whether there is really any sincerity to what she is demonstrating in court. Thank you.

Judge:

Thank you. Mr. Lagemaat, now that you have heard that spelled out in some detail what is your suggestion?

Lagemaat:

Well, I will repeat that I ran the cross-examination the way I would have run the cross-examination. I am appointed by the court and if the court orders me to bring up these lines of cross-examination I will.

I have the statement on my computer. I believe we have sound equipment here. The only -- the only time -- it would take a little bit of time to get to the remarks, but Mr. Fox has them marked down quite accurately where they are --

Judge:

Yes.

Lagemaat:

-- because I have already looked them up on the -- on the audio. They are quite easy to find.

Judge:

All right. Thank you.

Mr. Myhre -- and I do have a question for both Mr. Myhre and Mr. Lagemaat.

Myhre:

It seems to me most of that is -- it's not irrelevant.

Judge:

Not irrelevant?

Myhre:

And -- it's not irrelevant and so -- so if Mr. Lagemaat is willing to do it, even though he might not have done it that way, I am not opposed.

Having reviewed the cases provided to her by Myhre, regarding whether the lawyer or the self-represented accused has control over the cross-examination, Holmes decides it is the self-represented acccused (me), not Lagemaat who controls the cross.

Holmes' reasoning is that the 486.3 appointed lawyer is for the benefit of the supposedly vulnerable witness, not for the benefit of the self-represented accused.

This is very significant because, as Holmes points out, Lagemaat was very opposed to confronting Capuano on the recording of her laughing and joking with the RCMP. If it were up to Lagemaat, that recording would not be presented, even though it clearly shows what an evil, lying, manipulating, sociopath Desiree is; and that this is all just a big joke to her, a ploy to get back at me for what she falsely claims I did to her.

Holmes' decision and reasoning here shows she was actually objective in applying the law ... that is, until the jury returns a guilty verdict. Like almost every justice system participant, Holmes blindly believes the justice system is infalable.

Judge:

So I'd like to raise a question for you to consider, and it comes from something Mr. Fox said. He asked essentially for the court's advice on whether these additional areas should be introduced through cross-examination or not.

I can say that I have reviewed the two cases Mr. Myhre gave me, R. v. Thornton and R. v. Faulkner, and I have come to the view that I would share with Justice Gray in Thornton the view that counsel appointed under s. 486.3 is not in a solicitor-client relationship with the accused in the way that defence counsel is, but is subject to ethical duties that may be very similar to those that retained counsel bears, and of course is subject to the requirement that a cross-examination be on relevant points and -- and confirm in the various other ways with the rules of evidence.

However, ultimately it is my view, as it is the view of Justice Gray, that where an accused person is self-represented in the trial it's the accused person's decision that governs concerning the lines of inquiry to be pursued in the cross-examination, subject to the ethical duties on counsel who is conducting the cross-examination and the rules of evidence.

And I reach that view because appointed counsel is not defence counsel, is not appointed for the benefit of the accused person, but rather is appointed to protect potentially vulnerable witnesses from being cross-examined by the very person against whom they have made allegations.

So it is a measure to protect potentially vulnerable witnesses, not to restrict the accused person's right to present the case in the way that he wishes to put it before the court.

That is my view concerning the role of appointed counsel, but there is an additional factor to be considered, and that is the role of the court in ensuring that Mr. Fox has a fair trial as a self-represented person and that his own decisions about the course of his defence don't cause him to -- particularly where he has sought the advice of the court to -- I won't say lead himself into error, but to make a very bad strategic decision.

It is clearly Mr. Lagemaat's view that the various lines of cross-examination Mr. Fox spoke of were either not proper or were strategically dis -- not -- not of advantage to Mr. Fox.

So can counsel assist me on the question of to what extent there is a duty on the court to consider the -- the potential strategic advantages and disadvantages of this line of cross-examination?

Lagemaat:

I haven't reviewed the cases in depth, but it would be my submission that once the 486 appointee, me, has said they've completed their cross-examination, it could be the court's role to order to continue on and I believe the case said if you feel it's relevant and yes, he -- Mr. Fox does have a right to have those lines if -- if -- for his fair trial to have the line of cross-examination he would have taken if he was self-represented heard, if it's relevant.

Judge:

Does the court have an obligation to, for example, listen to this audio recording and make an assessment of whether cross-examining on it would assist Mr. Fox or not?

Lagemaat:

I would think that would be the only way he could do it, rather than us just summarize it, this is what it says.

Mr. Fox is looking for the demeanour. I would think that would be the only way the court could make that determination is by listening to it.

Judge:

But I mean I, the judge, not the jury.

Lagemaat:

Yes. Yes, you the judge, to make a determination on whether it's relevant and you go a step further and order counsel to cross-examine on it, because it is demeanour Mr. Fox is seeking to get at, which isn't -- I mean there is in brackets laughing, but I've listened to it and you don't get it out of the transcript quite as much.

Judge:

All right. Thank you. Mr. Myhre?

Myhre:

My Lady, I think that is a dangerous area for the court to go into, because you do not have all the context that counsel do, both myself and appointed counsel.

Obviously I am not giving any advice and I think it would just be dangerous to give strategic advice to Mr. Fox, when you don't have everything.

I would think the most appropriate course of action would be to encourage Mr. Fox to rely on counsel, but after that, short of trying to introduce improper or irrelevant evidence, I would say it's up to him.

What the hell? So now that Lagemaat is trying to get the judge to listen to the recording and order him to pursue questioning about it, Myhre is trying to get the judge to not listen to the recording and make a decision on it's relevance. Which is weird because a moment ago he was admitting that Desiree's demeanor in the recording did seem relevant.

What the fuck is going on here? It's almost like Lagemaat and Myhre are both trying to throw each other under the same bus. Myhre doesn't want to look like a complete idiot by arguing the recording is not relevant; Lagemaat doesn't want to violate the agreement he has with the BCPS to keep the recording out of the trial.

What a fucking shit show this is turning into.

But get this: Myhre actually has the nerve to suggest Holmes should encourage me to do what he and Lagemaat advise me to do! But it's already pretty fucking clear that there's some kind of collusion going on here between Lagemaat and Myhre, to make sure that recording doesn't go before the jury. There's no fucking chance in hell that I'm going to have any confidence in anything Lagemaat tells me!

Lagemaat:

One question I would have is I -- I'm not sure how I would get this in, if she accepts that she was laughing and taking it lightly, as she did on the most significant -- what I will say is the most significant one, the being the fly on the wall and laughing, she accepted that she wished she was there and so it would be my concern

How would you get this in? Well, here's an idea: Ask Capuano if, when she spoke with the RCMP, she thought it was uproariously funny; if she laughed out loud or hysterically; if she's faking all these tears on the witness stand? Ask her if she's a vindictive, manipulating, sociopath who is pretending to be traumatized because the jury is watching her? Ask her, isn't it true you've never actually been upset about any of this, and this is all just a game you're playing to get back of Fox for something? And when she denies all of that, then play the recording and ask her: "If you're so emotionally scarred, and afraid for your safety, then why did you find it so funny when you were talking to the RCMP after Fox had been denied bail?"

A legal basis for playing the recording doesn't seem that fucking difficult to find.

-- also how I would get this in if she accepts it that Mr. Fox has one, two, three, four -- nine clips here, none of them are more than from my estimation a minute.

Judge:

Mr. Fox?

Fox:

To clarify, though, there's nine clips on there, but those were just the ones that I thought at the time of the 486.3 hearing would be the most important ones to bring to your attention.

There is actually a lot more through that 45 minute to one hour stretch of the audio and there are many points and in fact, if we want to hear how we frequently moves from laughing to crying and back and forth so much, then it would be a matter of simply playing the eight or nine clips that are referred on there.

Judge:

All right. Generally, Mr. Fox, we don't play -- there are some exceptions where a very different use is made of previous statements, but generally we don't play recordings of witnesses giving interviews.

I have your point that you wish Ms. Capuano to be cross-examined on her basically ability to turn the tears on and off -- I am paraphrasing -- and to quickly change emotions and to apparently be a lot more lighthearted in talking about things that here are apparently causing her much more concern. That's -- that's your position. I don't know. I haven't heard this audio recording.

Mr. Lagemaat is a very experienced lawyer. He tells the court that he has listened to this audio recording several times, and that in his professional view it is not suitable to cross-examine further on those kinds of topics, but ultimately it is your call, Mr. Fox, and if you wish there to be some further cross-examination there will be, and I will ask Mr. Lagemaat to conduct it on your behalf, but you need to be aware of several things.

One is that you could be making an unwise decision. It's possible that what to you sounds like making light of things by laughing is nervous laughter, or is the kind of laughter stimulated by strong emotion that has nothing to do with finding something funny, and the strong emotion could be fear.

So there is a danger that further examination -- cross-examination on these points could backfire for your case, and in fact there is even a little bit of a basis in something Ms. Capuano has said already, which was when she was being cross-examined about laughing she said that it wasn't amusement that was causing her to laugh, she was scared, something along those lines. So there is the germ of that idea there and you would run the risk that further cross-examination would just solidify that.

I should also tell you that further cross-examination would be restricted by the rules of evidence. It would almost certainly not be permitted for Mr. Lagemaat to just start the tape and run it.

If he were to, for example, suggest to Ms. Capuano that on repeated occasions she laughed and in fact she went quickly from laughing to crying and back to laughing, and she did this, you know, 15, 20 times, whatever it is, if she agrees that's the end of it. The tape doesn't get played.

It's only if she says, oh no, that wasn't what happened that then the tape could be played to show that that is in fact what happened. So we're not going to be in a situation where we start at the beginning of the tape and play it for an hour, or the second half, or whatever it is that most interests you.

I think what we're going to do is we're going to take a short afternoon break, about ten minutes. I am going to encourage you to think a little bit more about these questions. If you wish Mr. Lagemaat to pursue them in further cross-examination, then he will do so, so long as they are relevant to the issues in the trial.

And there are some of the issues you mentioned that probably are not relevant, at least the substance -- for example the premature birth, what actually happened is not going to be relevant. Perhaps the changes of emotions while she talked about that may be relevant.

So do you have something you wish to ask me, Mr. Fox?

Fox:

No, no, My Lady.

Judge:

Anything further to say at this point? Otherwise I think we'll take ten minutes and you can think it over some more.

Fox:

Yes, ten minutes sounds great. I am wondering, though, if I might be able to confer with Mr. Lagemaat during that time?

Lagemaat:

Of course.

Judge:

Yes.

Fox:

Okay.

Judge:

Mr. Myhre, anything further?

Myhre:

My Lady, counsel and Mr. Fox and I had discussed the potential re-exam and there was one issue that came up about the authenticity of an email. It was agreed amongst all of us that it would be okay to ask Ms. Capuano if she has that email, so I am just asking the courts leave to ask her about that specific thing over the break, do you have the specific email we discussed.

Judge:

Do you agree?

Lagemaat:

That is the agreement we came to, My Lady.

Judge:

All right. Do I need to tell Ms. Capuano that?

Lagemaat:

I think you can rely on me as officer of the court, My Lady.

Judge:

I'm not worried about my relying on you, but as long as she will accept that --

Lagemaat:

If she tried to broach anything I would shut it down, My Lady.

Judge:

No, I want her to be confident that she is permitted to speak to you about that.

Lagemaat:

I see. Pardon me.

Judge:

You can advise her that you have been permission by the court.

Lagemaat:

Thank you.

Judge:

All right. Thank you. We'll stand down.

(PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)

(PROCEEDINGS RECONVENED)

(JURY IN)

Desiree being cross-examined on the recordings of her laughing and joking with the RCMP, about the website and Fox's conduct

Lagemaat:

Mr. Fox has decided and you can confirm this with him, that there is nine files he intends to have questioning on five of them, and we are all ready to go. It won't take up much of the court's time and none of them are more than one minute.

Judge:

All right. So we're all set to go essentially?

Lagemaat:

We're all set to go, My Lady.

Judge:

All right. Mr. Myhre, you're nodding. Mr. Fox, you're agreed?

Fox:

Yes.

Judge:

All right. Please.

(JURY IN)

Judge:

Thank you. Thank you for your patience, members of the jury. There's going to be some further questions.

DESIREE CAPUANO,

recalled.

CROSS-EXAMINATION BY MR. LAGEMAAT, CONTINUING:

Lagemaat Cross-Examines Capuano on the Recording of Her RCMP Interview

Although Lagemaat schemed and fought hard to keep the recording of the Capuano's RCMP interview out of the trial, Holmes ruled that as a self-represented accused I, not Lagemaat, had control over what lines of questioning would be pursued. Not to mention, both Holmes and Myhre agreed the fact that Capuano was laughing and joking in the recording, about the same things she was appearing to cry about on the witness stand, seemed pretty relevant to the issue of her credibility.

This block contains Lagemaat's cross-examination about the inconsistencies in Capuano's demeanor and mindset between that interview and her performance on the witness stand.

Notice, though, how Lagemaat seems to be putting as little effort as possible into antagonizing Capuano, compared to when he was crossing her on the emails. It's almost like he's trying to make sure this segment of the cross-examination does not stand out in the jurors' minds. Or maybe I'm reading more into it than there is?

Desiree Trying to Force A Miscarriage

In 2000, when Capuano was five months pregnant with Gabriel, she got mad one day, locked herself in the bathroom, and repeatedly punched herself in the abdomen to try to force a miscarriage. That resulted in her hemorrhaging. I took her to the hospital, where she opnely admitted to the doctors what had happened. That resulted in Gabriel being born three months premature, then ultimately blind in one eye. I wrote all about it on the Desiree Capuano website I Tried to Force a Miscarriage at 5 Months, Causing My Son to be Born 3 Months Premature and Blind, 2016-03-22.

Desiree has always insisted the hemorrhaging was caused by a car accident she was in a month prior. She claims the article on the website has caused her substantial harm and she's received death threats over it. And yet, she has, and continues to, refuse to obtain the medical records from that hospital visit. Because she knows the records show the hemorrhaging was caused by her trying to self-abort.

On direct, Desiree testified about this very emotionally. She claimed the story was false TR 2017-06-13 p39l2-21; audio.

But as you can see from the recording of the RCMP interview, conducted almost a year before the trial, there is no sadness in her tone. She openly laughs about it.

Lagemaat:

Ms. Capuano, we talked in -- you talked in direct evidence that Mr. Fox had accused you of punching yourself in the stomach when you were pregnant in an attempt to miscarry. Do you recall that conversation?

Capuano:

Yes.

Lagemaat:

Did you find this allegation amusing?

Capuano:

Yes.

Lagemaat:

And it makes you laugh?

Capuano:

It's ridiculous, yes.

Lagemaat:

You find it funny.

Capuano:

The miscarriage was not funny but the fact that I would punch myself in the stomach to try to abort my child, yes. What's disturbing is that he told our child that.

Lagemaat:

It was disturbing or funny?

Capuano:

It was disturbing that he told our child. It's funny to me.

Lagemaat:

So you find it funny.

Capuano:

That that's his belief, yes. He was sitting right there, he -- he was there with me that day and it's completely ridiculous.

Lagemaat:

You're laughing now.

Capuano:

Yeah.

Lagemaat:

Do you recall giving a statement to Constable -- or Corporal Wilcott of the Burnaby RCMP?

Capuano:

Yes.

Lagemaat:

And, sorry, but that was on July 13th, 2016. How was that statement taken? Did -- did he go down to Arizona?

Capuano:

Yes.

Lagemaat:

And he attended at your residence? No, at the police station.

Lagemaat:

At the police station. And you recall giving that statement; correct?

Capuano:

Yes.

Lagemaat:

Do you recall laughing about the allegation that you'd punched yourself in the stomach?

Capuano:

I probably did.

Lagemaat:

You probably did or you did?

Capuano:

I probably -- I don't remember.

Lagemaat:

You don't remember?

Capuano:

It was a three-hour interview.

Lagemaat:

So you don't know if you laughed about it.

Capuano:

I don't.

Lagemaat:

I'm going to suggest to you you did.

Capuano:

And that's why I said probably.

Lagemaat:

But you don't know.

Capuano:

No. I haven't listened to the interview and I haven't listened to it since I gave the interview. I don't remember exactly what points --

Lagemaat:

I'm -- I'm going to play a clip of the interview to you at this time.

Capuano:

Yes.

Lagemaat:

And you can confirm whether you find this allegation funny or you're laughing about it.

(AUDIO BEING PLAYED)

Desiree laughing and joking with the RCMP about punching herself in the stomach to try to cause a miscarriage when she was pregnant with her's and Fox's son

(AUDIO STOPPED)

Lagemaat:

Would you now agree that you were laughing about it in the statement you gave to Corporal Wilcott?

Capuano:

I agree that the terms "funny" and "laughing" can be done in various different ways. When you go see a circus act, you can laugh because a juggler's funny, but if you fall down and hurt your elbow you can also laugh.

Lagemaat:

Really?

Capuano:

If you hit your funny bone, sure. I've laughed because of pain before. Everybody's --

Lagemaat:

So you were laughing --

Capuano:

-- different.

Lagemaat:

-- there because -- sorry. I'm sorry to interrupt. Continue.

Capuano:

All I'm saying is that not every laugh is a comical laugh, not every funny is a ha ha comical funny. Some of them are ridiculous, some of them are ludicrous, some of them are sarcastic, some of them are ironic, some of them are ha ha funny. That was not a ha ha funny, but it's ridiculous. It's ridiculous that that would be the story that my son would believe --

Lagemaat:

But -- but --

Capuano:

-- or know. But, yes, I did laugh.

Lagemaat:

But you were comparing it to falling down -- or hurting your elbow, that laugh?

Capuano:

No, that's not what I said at all.

Lagemaat:

So why were you laughing?

Capuano:

Because it's ridiculous. Same reason I said in the recording.

Me Knowing Things About Desiree's Legal Matters Before She Did

Desiree claims she found it "scary" that I often knew about her legal proceedings before she did. She says she "thought it was creepy" that I would be researching and paying [private investgators] to get information about her TR 2017-06-15 p70l19-26. I suppose she was trying to create an impression of me being obsessed with her.

But when she discussed this with the RCMP, she laughed quite openly about it.

In her testimony here, she claims the laughter was "a coping mechanism". She melodramatically says if she doesn't maintain some sense of sanity through this she would lose her mind, and so a lot of times she will laugh in order to prevent herself from crying.

That is, of course, a load of crap. When you listen to the clip of the recording from the interview, you see there is clearly no distress in her voice. She was not trying to "cope" with anything, she was having a grand old time laughing about me knowing about her legal proceedings.

After Lagemaat played the clip, Capuano actually claims her laughter was because she was "about to cry". Ha! There is absolutely no sense of anxiety in her voice. She's jovial and lighthearted.

She can't possibly believe anyone is believing this.

Lagemaat:

Okay. Do you in any way find it funny that quite often during this time, and you've made this allegation, that -- or tell me first, quite often during this period did Mr. Fox know things about you before you knew them? And I'm talking about legal issues.

Capuano:

Yes.

Lagemaat:

And did you find that funny?

Capuano:

No, I found that scary. Like during the time of that happening, that was during court proceedings. The website hadn't come up, the harassment hadn't really started yet, so really it was just a lot of custody battles and emails back and forth. So I thought it was creepy that he would be researching and paying to get information on me before I would even know about it. But at the time it was not -- I was not trying to say that there was harassment or a fear for my life.

Lagemaat:

Well, at the time, in hindsight, do you find it funny that he knew things before you knew them --

Capuano:

No.

Lagemaat:

-- about you? You don't find it funny. Do you recall giving the statement, the same one on July 13th, to Corporal Wilcott at the police station in -- or Arizona?

Capuano:

Yes.

Lagemaat:

And were you laughing when you were talking about him knowing more than you --

Capuano:

My laughing is a --

Lagemaat:

-- or sooner than you?

Capuano:

My laughing is a coping mechanism in a lot of cases. If I don't maintain some sense of --

Lagemaat:

I --

Capuano:

-- sanity through this --

Lagemaat:

I asked you --

Capuano:

-- then I would lose my mind. And so a lot of times I will laugh in -- so that I don't cry.

Lagemaat:

I asked you if you were laughing.

Capuano:

I don't remember, but I assume that you have the clip so we can find out. I would assume that yes.

Lagemaat:

So you don't know if you were laughing at the time.

Capuano:

I don't remember everything that I laughed at during this interview.

Myhre:

My Lady, my friend has already established that she doesn't remember giving this statement. There's no utility in asking her whether or not she remembers every time.

Lagemaat:

I'm going to play for you a clip, Ms. Capuano. Sorry, it's a little bit hard to get on the precise seconds and I've got to play it up to that portion.

(AUDIO BEING PLAYED)

Desiree laughing and joking with the RCMP about Fox often knowing about what's happening in her life before she does

(AUDIO STOPPED)

Capuano:

Yeah, I was about to cry.

Lagemaat:

Would you agree with -- pardon me?

Capuano:

I was about to cry, so I laughed instead.

Lagemaat:

That was about to cry?

Capuano:

That was me about to cry, and so I laughed instead. That's the way I go on.

The Family Court Refusing to Deal With Child Support

Earlier, during cross-examination, Desiree made numerous references to me "trying to make her pay child support" TR 2017-06-15 p30l47-p31l1; p33l36-37 and to her "never going after me for child support TR 2017-06-15 p35l39-40.

But during the RCMP interview, Desiree laughed about the family court repeatedly postponing my child support application when I had custody of Gabriel.

By saying that, she created the impression she was being fincially responsible and I was being a deadbeat parent. Of course, she doesn't mention the reason she "never went after me for child support" is because when she gained custody of Gabriel I promptly provided Gabriel a credit card to cover all necessary support related expenses and setup automatic deposits to his bank account for $125 a week. She didn't have to go after me for child support because I proactively provided support, on my own, without having to be asked or ordered to do so. She also failed to mention that when I had custody of Gabriel, she adamantly refused to contribute a penny to Gabriel's needs or well-being, while simultaneously bragging about how much money she was making.

Lagemaat:

Do you think it's funny, in hindsight, the fact that you are able to represent yourself in family court and win?

Capuano:

I think that it was ironic that I had spent a lot of money on lawyers and gotten nowhere in my case until I took over. I think that's ironic, yeah.

Lagemaat:

Ironic or funny?

Capuano:

They can be construed as the same.

Lagemaat:

Do you recall giving the -- I've asked you, the statement, and we're going to talk about the same statement, Corporal Wilcott. Do you recall talking about being able to represent yourself in court, family court, and winning, and laughing about the -- the court deferring a child support request? Do you recall laughing about that?

Capuano:

I don't remember it being said like that.

Lagemaat:

Again I'm going to play a clip to you, Ms. Capuano, and it will just take a second to get to it, or 30 seconds.

(AUDIO BEING PLAYED)

Desiree laughing and joking with the RCMP about the family court not pursuing her for child support

(AUDIO STOPPED)

Lagemaat:

Would you agree with me you were laughing about what happened in court, you won and the child support being deferred?

Capuano:

No.

Lagemaat:

You would not --

Capuano:

I don't agree with that.

Lagemaat:

-- agree you were laughing.

Capuano:

I don't agree that I was laughing because I was not assigned child support, no. That's not what that meant at all.

Lagemaat:

What were you laughing about?

Capuano:

The laugh wasn't a laugh because the situation was funny, the laugh was in exasperation again. This has been really hard. The laughing is a coping mechanism.

Lagemaat:

Have you laughed at all here the last three days?

Capuano:

Yes. You just called me on it.

The Fake LinkedIn Profile

Desiree claims I created a fake LinkedIn profile in her name, claiming she was a stripper, and she smokes pot, and she doesn't care about her kids, et cetera, et cetera.

She talked about this on direct. While testifying about it, she frequently sounds like she is on the verge of crying and is trying very hard to maintain her composure. She testified that one of her colleagues at work came to her one day and suggested she shouldn't put on her LinkedIn profile that she's a stripper and a drug user. Desiree claimed she had no knowledge of what the colleague was talking about. She claimed many of her work associates had already connected to that fake profile p55l6-22.

Desiree went on to testify on direct that she had contacted LinkedIn and LinkedIn had taken down the fake profile, but by that point many of her work associates had already connected with the profile and had received an email from me, pretending to be Desiree p55l27-32.

In her police interviews, she tells the story about being approached by her colleague at somewhat greater length RCMP Interview ¶614. But unlike her testimony at the trial, during the interview, she laughed about the incident.

Lagemaat:

Did you find it funny, Ms. Capuano, when your coworkers would approach you, knowing that you had said on LinkedIn -- or a LinkedIn profile in your name had said that you were a stripper? Did you find that funny?

Capuano:

No.

Lagemaat:

And in the same statement with Corporal Wilcott at the police station, did you laugh about that?

Capuano:

Probably, yes. And I think that that proves my point. Anybody in a work situation, if they're -- come out with their colleagues and their colleagues tell them that they saw a LinkedIn profile that says they're a stripper, I don't think that anybody would find that comically funny.

Lagemaat:

But why would they laugh, then?

Capuano:

It's in coping. If I don't laugh about some of these things, if I don't, then I cry.

Lagemaat:

But you don't recall if you laughed, is that correct, in -- with Corporal Wilcott?

Capuano:

I can't guarantee you that that's one of the moments. I don't remember --

Lagemaat:

Yes.

Capuano:

-- every time. And my laugh is not a ha ha ha, it's a "I can't believe I made it through this. I can't believe I made it through another one of these things."

Lagemaat:

I'm going to play a short clip for you, Ms. Capuano.

Capuano:

Sure.

(AUDIO BEING PLAYED)

Desiree laughing and joking with the RCMP about her claim that Fox created a LinkedIn profile in her name, stating she was was stripper

(AUDIO STOPPED)

Lagemaat:

Would you agree with me, Ms. Capuano, that you were laughing there?

Capuano:

Not laughing at the situation, but I did in telling Wilcott about it. Trying to get through the story is hard.

Lagemaat:

So -- so you're saying that that wasn't genuine laughing in any of these clips.

Capuano:

No.

Lagemaat:

Sorry, I'm just getting to the last one. One minute, please.

I think, from all of this evidence you've gone through, and you're just about finished, would you say that you were left with some scars from this whole experience?

Capuano:

Yes. It's still happening.

Lagemaat:

And do you find it humorous at all that you've been left with scars from all of this?

Capuano:

No, but I do have pride in myself for my strength and my resiliency.

Lagemaat:

I'm going to play a short clip for you, Ms. Capuano, in a second here. And -- and, sorry, this again you recall giving the statement to Corporal Wilcott --

Capuano:

Yes.

Lagemaat:

-- in Phoenix in the police station.

Capuano:

Tucson.

Lagemaat:

Tucson.

(AUDIO BEING PLAYED)

Desiree laughing and joking with the RCMP about "the scars" she has from dealing with Fox

(AUDIO STOPPED)

Lagemaat:

Would you agree with me, Ms. Capuano, you were laughing in that clip?

Capuano:

Yes, I was.

Lagemaat:

But now you're crying.

Capuano:

That was what the laugh was to prevent.

Lagemaat:

What would -- what would have been wrong with crying there? Why can you cry here but --

Capuano:

I'd already cried.

Lagemaat:

-- not there?

Capuano:

I was just trying to get through the story. We still had years to go through. I couldn't break down that stuff.

Lagemaat:

Why not?

Capuano:

Because I was trying to get through the story.

Lagemaat:

Isn't that what we're doing here?

Capuano:

Yeah.

Lagemaat:

No more questions.

Myhre:

My Lady, if there's any chance we could do re-exam, I think I'll be about 10 minutes. And if we're longer than that, I promise I will just stop.

Judge:

Members of the jury, is there anyone who will have difficulty staying for another 10 minutes?

RE-EXAMINATION BY MR. MYHRE:

Myhre:

Ms. Capuano, I'm just going to show you a document here. And, My Lady, pardon me, I only have one copy of this document, so I'm going to ask the question from right here, if that's okay.

Ms. Capuano, if you flip through these, it just looks like emails between yourself and -- and Richard, some that we've -- in fact all of them that we've gone through already.

Capuano:

Yes.

Myhre:

So, members of the jury, I'm going to refer Ms. Capuano to some of the emails that my friend referred her to in the binder.

Myhre:

And so, Ms. Capuano, can I see that document? The first email I'm showing you is dated January 21st, 2014, at 8:34 p.m., and it's titled "On the topic of love"?

Capuano:

Yes.

Myhre:

The original email in that chain, so the first one that came from -- from Patrick Fox at 8:34 p.m., was Gabriel cc'd on that?

Capuano:

Yes.

Myhre:

And so just for the record, I'm showing you a document. Does that refresh your memory about whether Gabriel was on that chain?

Capuano:

Yes.

Myhre:

The next document I'm showing you is an email titled "Telephone call", dated December 17th, 2014, at 8:30 p.m.

Capuano:

Yes.

Judge:

Can you give us a clue where we find this, please?

Myhre:

So it's titled "Telephone call" and it's dated December 17th, 2014.

Judge:

All right.

Myhre:

And I'm looking at the originating email in that chain.

Judge:

Members of the jury, it's about what I've numbered the eighth page in the defence binder, Exhibit 2. In Exhibit 2, it's about page 8.

Myhre:

Ms. Capuano, having looked at this copy of what looks like that email, does that refresh your memory about whether Gabriel was cc's on the original chain?

Capuano:

Yes.

Myhre:

And was he?

Capuano:

Yes.

Myhre:

The next email I'm showing you is dated January 15th, 2015. It's titled "A little test".

Capuano:

Yes.

Myhre:

And I'm showing you what appears to be the original email in the chain from Patrick Fox at 9:44 p.m. on January 15th, 2015. Having looked at this document, do you remember now if Gabriel was cc'd on this first email?

Capuano:

He was included, yes.

Myhre:

Moving on to an email dated January the 11th, 2015, titled "Your loving home and parental teaching and guidance".

Capuano:

Yes.

Myhre:

I'm showing you what appears to be the originating email in that chain, from Patrick Fox at 9:04 a.m. Was Gabriel cc'd on the originating email?

Capuano:

Yes.

Myhre:

In that same chain there was -- the next email in the chain is dated January the 11th, 2015, at 10:20 a.m. It just followed -- I think, in the -- in the defence book it just followed right on top of the first one.

Capuano:

Yes.

Myhre:

There are two emails in a row from -- from Patrick Fox. Was Gabriel cc'd on the second one?

Capuano:

I believe so, yes.

Myhre:

Moving ahead to an email January 26th, 2015, titled "Your talk with Gabriel".

Capuano:

Yes.

Myhre:

I'm showing you what appears to be the originating email in that chain, from Patrick Fox at 10:03 p.m. on January 26th, 2015. Having looked at this document, can you tell us whether Gabriel was cc'd on that first email?

Capuano:

Yes.

Myhre:

Moving ahead to an email titled "Your belief in my motives", dated February the 8th, 2015. I'm showing you what appears to be about the third email in the chain.

Capuano:

Yes.

Myhre:

Was Gabriel cc'd on the third email in that chain?

Capuano:

Yes.

Myhre:

And that was an email from Patrick Fox to you dated February the 8th, 2015, at 10:08 a.m.

Capuano:

Yes.

Myhre:

Lastly, showing you an email from May 7th, 2015, titled "More of what I know".

Capuano:

Yes.

Myhre:

And I'm showing you the originating email on that chain, May 7th, 2015, at 1:07 p.m., from Patrick Fox to you. Can you tell us whether Gabriel was cc'd on that email?

Capuano:

Yes.

Myhre:

Ms. Capuano, I'm showing you a document. Could you just take a quick look at that and tell me whether you recognize it.

Myhre:

There's a copy for Your Ladyship.

Judge:

Thank you.

Myhre:

Ms. Capuano, do you recognize this document?

Capuano:

Yes.

Myhre:

And this is an email from Richard that came to you in the middle of a long chain that we've looked at over the last few days.

Capuano:

Yes.

Myhre:

And is that an accurate printout of the email?

Capuano:

Yes.

Myhre:

My Lady, could that be marked as an exhibit, please?

Judge:

Don't we need to know more about it?

Myhre:

I believe, My Lady, she's authenticated it as an email she received in the middle of that chain and that's --

Judge:

Well, don't we need to know what chain?

Myhre:

There is a subject line on that email.

Ms. Capuano, could you read it out?

Capuano:

"Your loving home and parental teaching and guidance".

Judge:

All right. Any objection?

Lagemaat:

No objection --

Judge:

All right.

Lagemaat:

-- My Lady.

Judge:

So that would be what?

Clerk:

Exhibit 3, My Lady.

Judge:

Thank you.

Myhre:

Thank you.

EXHIBIT 3: Printout of email chain from Patrick Fox to Desiree Capuano dated 01/14/2015, subject line "Your loving home and parental teaching and guidance"

Myhre:

Ms. Capuano, I'm showing you another document. Do you recognize this as the email you sent that started the long chain we looked at titled "Gabriel's summer visitation 2015"?

Capuano:

Yes.

Myhre:

And is this an accurate copy of that email?

Capuano:

Yes.

Myhre:

My Lady, could that be marked as the next exhibit, please?

Judge:

Okay. No objection?

Lagemaat:

No objection, My Lady.

Clerk:

Exhibit 4, My Lady.

EXHIBIT 4: Printout of email from Desiree Capuano to Patrick Fox dated 04/20/2015, subject line "Gabriel summer visitation 2015"

Sheriff:

Counsel, we're short by five.

Myhre:

By five?

Sheriff:

Yeah.

Myhre:

Please pardon me, My Lady. I'll have to bring in new copies tomorrow.

Judge:

Perhaps the jurors wouldn't mind sharing for now, and Mr. Myhre will bring some copies tomorrow.

Myhre:

I'm hitting 4:10, My Lady, but these are my last -- this is the last document I'm asking about.

Judge:

All right.

Myhre:

And I have a copy for Your Ladyship.

Judge:

Thank you.

Myhre:

Ms. Capuano, do you recognize this as a printout of what appears to be all or virtually all emails between yourself and -- and Mr. Riess between May 2016 going back to February 2014.

Capuano:

Yes, these are the emails.

Myhre:

Okay. And do you see that there's some highlighting on this page?

Capuano:

Yes.

Myhre:

And can you just look it over and tell me if you agree that this is accurate? The emails that are highlighted in pink are email -- pardon me, let me back up. I'm going to suggest that every highlighted email is an originating email in a chain.

Capuano:

Okay.

Myhre:

There may or may not have been follow-up emails. Now, the pink highlighting shows an email that you initiated, the yellow highlighting shows an email that Richard initiated but to which you did not respond --

Capuano:

Okay.

Myhre:

-- and the green highlighting shows an email that Richard initiated to which you did respond.

Capuano:

Okay.

Myhre:

Just look through that document and tell me if that appears to be accurate, please.

My Lady, may I give copies to the jury?

Judge:

No objection?

Lagemaat:

No objection.

Myhre:

Ms. Capuano, does my characterization of the highlighting appear to be accurate?

Capuano:

Yes.

Myhre:

My Lady, if this could please be marked as an exhibit.

Judge:

All right.

Lagemaat:

No objection.

Clerk:

Exhibit 5, My Lady.

EXHIBIT 5: Document titled "Desiree Capuano" containing printout of emails

Myhre:

My Lady, those are all my questions.

Judge:

All right. Thank you very much.

Members of the jury, thank you for your attention and your patience through the day when you've had to spend some time in the jury room. I ask you to come back tomorrow ready to start at the usual time, please. Thank you.

(JURY OUT)

Judge:

Is there anything else we need to deal with?

Myhre:

No, My Lady.

Lagemaat:

No, My Lady.

Judge:

I take it that's the end of your involvement, Mr. Lagemaat.

Lagemaat:

Yes

Judge:

Thank you very much.

Lagemaat:

Thank you, My Lady.

Judge:

Thank you, Ms. Chatha.

Ms. Capuano, thank you for coming, and I understand you're excused now. There's no need for her to remain, I take it.

Chatha:

Thank you.

(WITNESS EXCUSED)

(PROCEEDINGS ADJOURNED TO JUNE 16, 2017, AT 10:00 A.M.)

Transcriber: S. Curran, K. Lowe