Maxwell Day Three: (Less Than) Total Recall

Dispatches from the Maxwell Trial

In the past two years while I’ve been researching “Chasing Ghislaine,” my Audible podcast and discovery+ documentary series (airing in back-to-back episodes on ID starting at 8/7c this Friday, December 3rd), sources close to Maxwell’s defense team have told me consistently that they are unbothered by the fact that the Southern District of New York’s conviction rate is extraordinarily high—reportedly over 95 percent.

“I don’t care what the statistics are,” someone close to Maxwell and her lawyers told me nine months ago. “Ghislaine is innocent, and we will prove that.”

At the time, I thought this person was crazy.

The charges against Maxwell are so heinous, and the notoriety of the case so great. Plus, the fact that Jeffrey Epstein, who Maxwell is accused of aiding in his abuse and sex-trafficking of minors, died in jail pre-trial has led almost every New York lawyer I speak to to say they believe the government really, really doesn’t want to lose in the wake of that. There is just too much at stake.

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Acting United States Attorney for the Southern District of New York, Audrey Strauss, speaks to the media at a press conference to announce the arrest of Ghislaine Maxwell, the longtime girlfriend and accused accomplice of deceased accused sex-trafficker Jeffrey Epstein on July 02, 2020 in New York City. || Spencer Platt / Getty

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Now, however, I’m beginning to see why the defense appears so confident in the way they handle themselves in the courtroom. (By contrast, the four prosecutors look absurdly young. “Are any of them out of their 20s?” a lawyer, a veteran prosecutor herself, who was sitting next to me asked rhetorically. “Why didn’t they add one person, at least, who was more experienced?”)

Yesterday in court, the defense didn’t just prevail—they hammered yesterday’s shocking testimony by Maxwell Accuser Number One, who is going under the pseudonym “Jane.” The most oft-repeated phrase of the day was “I don’t recall,” uttered by Jane when asked by Maxwell’s attorney Laura Menninger to explain the contradictions between Tuesday’s testimony and the prior statements Jane had made to the FBI in the past two years.

It's understandable one wouldn’t have perfect recall of traumatic events from twenty years ago. It’s quite another not to be able to recall what happened just months ago—a point Menninger got at in her clever, dogged way.

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Laura A. Menninger (L) and Jeffrey S. Pagliuca (C), part of Ghislaine Maxwell's defense team, depart the Thurgood Marshall United States Courthouse on November 29, 2021 in New York City. || David Dee Delgado / Getty

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Menninger, who is slight, blonde, and studious, took all morning—and beyond—to painstakingly highlight the numerous inconsistencies between what Jane had previously told the FBI and prosecutors—during ten interviews over the course of the past two years—and what she said on the stand yesterday.

It occurred to me that the effectiveness of Menninger’s performance was its understatement. It’s a delicate dance. She can’t risk coming off as if she is victim-shaming, particularly as a woman, in this era. And yet Menninger, with her very matter-of-fact, let’s-compare-and-contrast-the-evidence-piece-by-piece approach, seemingly managed to escape any criticism, at least where I was sitting, for raising question mark after question mark to Jane.

As we heard yet one more “I don’t recall” from Jane about something that had happened in recent history, people around me started shrugging their shoulders in an over-flow room. (After lunch, I was in the court room itself, where there was less blatant emotion, for obvious reasons, until we all burst out at 5pm.)

The main question many of us were left with was: Why on earth had the government not done a better job of prepping their witness (who admitted, yes, she’d had trial prep), given they would have been in possession of the FBI’s notes for months and months at this point?

Maxwell’s defense team has long been blatant about its strategy in pre-trial motions. They’ve been clear they are going to hammer the government witnesses for inconsistencies and claim their memories have been manipulated by greedy civil lawyers wanting access to Epstein’s millions. It’s back to the three M’s Maxwell defense lawyer Bobbi Sternheim had advertised on the trial’s opening day: memory, manipulation, and money.

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Bobbi Sternheim, a defense attorney for Ghislaine Maxwell, departs the Thurgood Marshall United States Courthouse on November 29, 2021 in New York City. || David Dee Delgado / Getty

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An important point of inconsistency in Jane’s narratives surfaced yesterday: Jane had testified the day before that Ghislaine was in the room when Epstein abused her—but, in 2019, she had told the FBI that Maxwell had never touched her, never kissed her, and was never in the room when Epstein abused her.

That’s a pretty big discrepancy—and one from an event two years ago, not two decades.

Further, when Jane’s civil lawyer, a player out of L.A., had filled in a form suing for money from the Epstein Victim compensation fund, there was a question asking if the applicant had ever been abused by anyone else. Jane’s answer on a “legally binding” document (per Menninger) was “none.”

Over the objections of the government, the document was submitted into evidence.

If the last three days showed the best opening the government has got, I can see why Maxwell’s defense has been quietly confident for so long. I cannot reveal my source, but I have been told that the most pressing question on their minds this past year is if they can find an unbiased jury. If so, they have always said, they believe they will win.

I, like most people I know, ignored that.

Now, I am paying attention.

All three parts of my docu-series “Chasing Ghislaine” will air back-to-back on ID starting at 8/7c tomorrow night.