What is Likely to Happen in the Ghislaine Maxwell Case?
As of now, there is the chance that the trial of Epstein’s alleged co-conspirator Ghislaine Maxwell could be deemed a mistrial. Currently, her defense team is filing motions under seal, (which are due on February 11th), and then the government will reply, and then Judge Alison Nathan will weigh in.
As people who have been following this case will likely know, this is all because Juror Number 50—who goes by his first and middle names, Scotty David—gave media interviews after the verdict in which he said he was a victim of sexual abuse and had talked about that experience in the jury room. There had been at least two questions on the initial questionnaire for potential jurors, and he said he could not recall how he had responded to either question.
Jeffrey Epstein and Ghislaine Maxwell in New York City on March 15, 2005. (Photo by Joe Schildhorn/Patrick McMullan via Getty Images)
Since Maxwell’s defense’s motions are mostly under seal (something that has been objected to in filings by various media organizations including the New York Times and Miami Herald as well as the government), we still don’t know what happened exactly.
But what about the process going forward?
For answers on that, I turned to former AUSA for the Southern District of Florida-turned-litigator David S. Weinstein, who has been a steady, reliable sounding board for me throughout my reporting on this trial. What follows is our conversation, condensed for clarity.
WARD: What should we should expect in terms of just process now from the court. What is actually likely to happen here?
WEINSTEIN: I think that what we should expect from the court is this: that after the judge reads the back-and-forth between the defense and the prosecution, she has two things to decide—First, did juror Number 50 intentionally mislead and make a false statement in his answers to the jury questionnaire? And, if so, second, did this then prejudice Maxwell from getting a fair trial?
And in order to get the answer to that, she has to consider: Am I going to conduct a full hearing and bring in Juror Number 50 and potentially the rest of the jurors—depending on what 50 says—to get to the bottom of this issue?
WARD: But that process would not be under seal, from what I can tell from the recent communications to the court from Christian Everdell [a Maxwell attorney].
WEINSTEIN: Correct. Because, from what we’ve seen in the letter pleadings from the defense and prosecution, Maxwell’s claim as to why their initial pleading is under seal right now is primarily that they [the defense] don't want to put their cards on the table for Juror Number 50. They don’t want Juror Number 50 to read what they have filed and go back and meet with his lawyer, to figure out what the right answer is. (The government disagrees with that argument and points out that partial redaction of the defense pleading and their response would satisfy any privacy concerns and that, prior to the trial, similar motions related to witnesses who might testify at trial were not filed under seal.)
But we still don’t know what they’ve found out about Juror Number 50 that is causing this.
WARD: So you’re saying that Juror Number 50 may not remember what he put on his form, and Maxwell’s defense team doesn’t want to tell him?
WEINSTEIN: Well, he either did answer that question or he didn't answer that question.
WARD: Well, or he answered it wrong. We don't know what he answered. He told the media that he couldn't remember the question, but that he was sure he’d have answered it correctly.
WEINSTEIN: So, if he made a misrepresentation on the form, the judge has to get to the issue of whether Maxwell would then have been able to exercise a peremptory strike [against having him on the jury because he wouldn’t be impartial], which would mean they wouldn’t have had to waste any of their challenges [known as strikes for cause] in which they’d have to make a case to the judge that this person was unfit to be on the jury.
So that gets to the issue of how many peremptory strikes did they have left when Juror Number 50 was under consideration? Would they not have been able to use it on others? That's the issue [Judge Nathan] has to get through initially.
And once [Nathan] gets past that and, say, she decides, that, yes, they did lose an extra cause challenge because of him but the person would've ended up on the jury nonetheless. Then she has to get to the next issue: Did the fact that he ended up on the jury—did what he said—influence what the other juror's decision was? For that, [Nathan] might have to bring in the rest of the panel to see what happens.
And if at the end of that, she decides, Hey, you know what? Yeah, you may have said that, but did it matter in the jury room? Did that affect Maxwell's ability to get a fair trial? And should I now grant the motion for a new trial and we start this all over again, or no?
If no, then she will deny the motion and say, Now we're gonna move on to sentencing.
And Maxwell’s team will appeal. And the court of appeals will have to deal with this.
WARD: And if she decides to go forward and have a trial, how quickly would that typically happen?
WEINSTEIN: It’s got to happen within 75 days. They just have to start the process in 75 days. They don't have to actually seat the jury. They just have to start the process.
WARD: Okay. Wow. I mean, wow.
WEINSTEIN: It could be springtime before she's made up her mind.
WARD: Right. But I mean, to my mind, it sounds like we're headed for a new trial.
WEINSTEIN: It all depends what the intent was of [Juror Number] 50 when he did it. Was it an innocent mistake that he answered incorrectly? Or was it intentional that he misled them and then that caused him to present himself differently, which would've resulted perhaps in him being struck by [the] defense?
WARD: Why does the intent even matter? I mean, it's a mistake.
WEINSTEIN: Oh, it was either a mistake or it was on purpose. Yeah. But there's nothing in the middle.
WARD: Right. But even if it's a mistake, nonetheless he answered the form wrong and they could have got rid of him [from the jury] potentially. Yes?
WEINSTEIN: Potentially, yes. But there might have been somebody who was, you know, worse than him that they wanted to get rid of in their mind.
WARD: Well, we shall see. What percentage of time do you get a retrial based on this sort thing?
WEINSTEIN: This? It's a single digit number. Because most often, the process actually does work.
WARD: Really helpful, David. Thank you.