The Last Duel
The defense in the Ghislaine Maxwell trial rested on Friday—an event which felt rather like the calm before the storm.
Day Two of the defense’s case brought another character witness in support of Maxwell— Michelle Healy, a former receptionist for Jeffrey Epstein—and, as I had previously speculated, Dr. Eva Andersson-Dubin, Epstein’s ex-girlfriend and who later became his close friend.
The point of the testimony of both Healy and Dubin was partly so they could refute the suggestion that they’d participated in what AUSA Alison Moe termed “group sexualized massages” described by Accuser Number One—“Jane”—who had mentioned an “Eva” and a “Michelle” among other names.
And, in Dubin’s case, she was asked if she could recall seeing “Jane” on flights for which flight logs listed them both. Dubin testified that she could not. But—and it’s a big but—it emerged on cross-examination that her memory is failing:
MOE: Dr. Dubin, without getting into any personal medical details, are you having some issues with your memory?
DUBIN: Yes, I do.MOE: Again, without getting into details because I don't want to invade your privacy, can you just explain for the jury what you mean by that?
DUBIN: It's very hard for me to remember anything far back. And sometimes I can't even remember things from last month. And my family notices it and I notice it and it's been an issue.
So, as an observer, one slightly wondered what was the point of calling Dubin.
After lunch, Maxwell was asked if she would testify in her own defense and she responded in stiff upper-lip English, “Your Honor, the government has not proven its case beyond a reasonable doubt; and so there is no need for me to testify.”
It was all rather anti-climactic.
Except, that is, for the brawling between the lawyers which happened when the jury was outside the room. The tension between the two teams is at this point not only palpable—it’s actually the most interesting dynamic in the court room.
It occurs to me that a very high percentage of this trial has taken place without the jury present because the lawyers have been locked in numerous battles about what evidence should and should not be admissible. (And, obviously, the deciding role of the judge, Alison Nathan, in all of this has been critical.)
Because of this, even on Day Fourteen, it’s very hard to know the picture that the jury has of the evidence as compared with what we journalists know about the lawyers in the room and their legal bickering.
We know, for example, that the defense felt rushed. The jury may not. In another example: We know that the defense team is very sore that they were unable to present direct testimony from a man named Ray Hamilton, who, according to the defense, was told by Accuser Number Two, “Kate,” that the Epstein matter “had fallen into her lap.” (Kate denied having said this, and Hamilton got Covid and wound up not testifying via WebEx from the UK because the defense deemed it “far too complicated.”) The jury also has no idea that the defense was scrambling at the last minute to see if they could get one reluctant witness, Kelly, arrested by today so they she would testify, they hoped, and undermine Jane, but that in the end they decided against calling her, not least because they were out of time.
So the jury may not realize, at the outset at least, that today’s closing arguments will be a showdown by the two lawyers who appear to bear the most personal animus toward each other: defense attorney Laura Menninger and Assistant U.S. Attorney Alison Moe.
The two women are a study in contrasts. Moe, 34, is the most overtly emotional of the prosecutors. She talks fast and passionately, and she uses her hands to gesticulate. But, by my count, the judge has now denied Moe a request for evidence three times because Moe “could have and should have” done A or B or C. I don’t believe Nathan has given quite so much wrist-slapping to any other lawyer in the room.
Menninger, 53, is the killer who deploys gentleness and calm as her weapon. Her decimation of accuser “Jane”—the accuser whose testimony is the most critical in deciding Maxwell’s fate, ultimately, because, by my math, approximately 80 percent of the charges revolve around her—was a masterclass in how to use a person’s own previous words against them:
MENNINGER: Does it refresh your recollection to read the sentence beginning with “the first time”? Yes or no.
JANE: Yes.
MENNINGER: It refreshes your recollection, it’s true that you told the government that the first time with Maxwell, there were two other girls there as well, correct?
JANE: Correct, but the wording that was typed up on this isn't correct, so I don't know how to –
MENNINGER. Another typo by the government?
MS. MOE: Objection, your Honor.
THE COURT: Overruled.
MENNINGER: It's another typo?
JANE: Yes.
MENNINGER: So, yesterday you gave a story that is different from December 2019 when you had no specific memory and is different from February 2020 when there were two other girls there as well, correct?
MS. MOE: Objection. Compound.
THE COURT: Sustained.
MENNINGER: Yesterday you testified that there were times when Ghislaine was in the room with you and Epstein, correct?
JANE: Correct.
MENNINGER: And you remember those times, right?
JANE: Not all, but yes.
MENNINGER: When you spoke with the government at the February 2020 meeting, they asked you if there were times where it was just you, Epstein and Ghislaine in the room, and you said you were not sure, correct?
JANE: I don't recall.
MENNINGER: You said you were not sure that ever happened, correct?
JANE: I don't recall.
MENNINGER: You were not sure where it happened, correct?
JANE: I don't recall.
MENNINGER: You only remembered being solely with Epstein and going back to the group setting, correct?
JANE: I don't recall.
MENNINGER: It is true that you do not recall Ghislaine ever touching you?
JANE: That's not true.
MENNINGER: When you spoke to the government in December of 2019 with your lawyers there, and you told the government at that time you are not sure whether Maxwell ever touched you during these encounters, correct?
JANE: I don't recall. …
MENNINGER: On page 3 of 3509-005, in the second full paragraph in the middle of the paragraph there's a sentence that begins with your name, and I would like you to read that and tell me if that refreshes your recollection that you said that to the government in December of 2019?
JANE: Which paragraph?
MENNINGER: The second full paragraph in the middle of the paragraph beginning with your name.
JANE: Yes.
MENNINGER: Does that refresh your recollection that you told the government you do not have a recollection and are not sure if Ghislaine touched you during these encounters; correct?
JANE: I don't recall.
MENNINGER: Isn't it true that's what you told the government on that date?
JANE: I don't remember, but it's written here.
MENNINGER: I want to turn back to your statement that you don't recall whether you ever told the government that Ghislaine did not see you performing oral sex on Epstein. Is that what you told the government?
JANE: I don't remember.
MENNINGER: If I could have you look at 3509-008 at page 10. And I ask you to look at the first full paragraph and the last sentence of that paragraph. Does that refresh your recollection of whether Ghislaine was ever present for instances of oral sex between you and Epstein?
JANE: Correct.
MENNINGER: It's true that you don't know whether Ghislaine was ever present for you having oral sex in any way with Epstein; correct?
JANE: I don't remember.
MENNINGER: That's what you told the government, didn't you?
JANE: I don't remember.
Moe and Menninger had already taken their gloves off last week in front of us—but not in front of the jury. First, there was the moment I reported on when Menninger told the judge that she’d heard that Jane had spoken with her brother and called her “an expletive that rhymes with ‘front.’”
(Ultimately the prosecution chose not to call the brother, so Menninger won that round.)
Another showdown occurred during a debate over the admissibility of a photograph of a topless Virginia Roberts and a photograph of another victim. Menninger argued that “this lawyer”—she meant Moe—had argued against the admission of provocative photographs of some of the accusers, accusing Menninger of “slut shaming.”
Here’s some of that exchange:
MENNINGER: And I also would like to say with respect to 309, we litigated whether or not we could put in evidence photographs of this witness, and the government called us, I think it was slut-shaming when I tried to argue that there were other photographs of this individual that were much like this that she had put out in newspapers, and now they want to put on a photo of her after she's gotten off the stand and not afforded us the opportunity to cross examine her about similar photographs that she has put out.
MOE: Your Honor, I'm surprised by all three of those arguments. …
MENNINGER: I think putting on a photograph like that without any supporting testimony about when it was taken, the circumstances under which it was taken is highly, unduly prejudicial.
MOE: Your Honor, defense counsel is grasping at straws here. This exhibit is plainly relevant. It's consistent with other trial exhibits and I do take issue with the suggestion that I made any misrepresentation with the Court. I certainly have not done that and would not do that, your Honor.
Moe won this round, and Menninger was visibly very upset.
That upset continued into last Friday when Nathan admonished Menninger about the missing “Kelly,” asking why this was coming to attention so late. Menninger said in her most emotional moment: “Our client's life is on the line and we're being given one day it to put on a defense, one and a half days, and there is one witness that we're having problems with. We're not asking for some weeks’ long delay.”
On Saturday, during the charging conference, Moe was not present and Menninger slipped out early. Both presumably were readying their closing statements. Moe will go first, then Menninger, leaving Maurene Comey 35 minutes for the prosecution for her rebuttal.
The judge told both teams to tell their colleagues to have a fair fight that draws only on the evidence presented at trial: “For both sides, any inference argued had better be from the transcript or the documents, and any objections should be rare and not based on your interpretation of the available evidence but the fact of the available evidence. We should get through closings without objections.”
Will the two lawyers abide by the judge’s instructions? One thing you can be sure of: Both of them are going to give this everything they’ve got.
