MAXWELL'S APPEAL ARGUMENT IS STRANGE: HERE'S WHY

“It’s The Integrity Of The System—That’s What We’re Fighting For With Ghislaine”

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Last week, I sat in for the hearing of Ghislaine Maxwell's appeal. Among a room full of reporters, I crammed into an overflow room outfitted with star-pattered carpet and dark leather couches facing a mid-sized TV screen (just outside the courtroom's entrance). I watched Maxwell's new attorney, Diana Fabi Samson, argue the case. There were three judges and color-coded timers involved. It was quick and confusing. The issue most mulled over was Epstein's arrangement from 2007, which was drafted to protect his co-conspirators. Oddly, Ghislaine's name was not listed among the other four women. Samson argued that Epstein's infamous non-prosecution agreement should have barred Ghislaine's prosecution despite the fact. The presence of a rogue juror, who had lied on his questioner about past abuse, was not raised during the hearing. However, the court will undoubtedly consider this significant detail, as Arthur Aidala clarifies in the video below. 

Footnotes: I was instantly captivated by Arthur Aidala's demeanor. He exudes a charismatic presence in and outside the Federal Courthouse, reminiscent of a Roger Rabbit-style mobster boss. His sharp attire (note the shoes) and overly confident demeanor commands attention. Yet, he projects an air of approachability, like the guy you'd want to share a plate of meatballs with at the Italian place down the street— All the qualities you'd want in a defense lawyer: authority, assurance, humor, politeness, and the old-school mob boss style doesn't hurt. His father, a former attorney himself, was also on hand for the hearing, as was his nephew. Arthur directing the firm for a "family" photo outside the courthouse was an amusing scene. "Joan" reminds me of every mother at Christmas, striving to capture a decent shot. After they finally nailed one the team headed to Dan Nico's to celebrate feeling "cautiously optimistic" about their client's fate. 

“Even when there are few cameras around, Arthur L. Aidala, 54, is camera-ready, dressed in a light-blue pinstripe suit with a purple pocket square and tie on a sunny June day. He’s a lawyer who welcomes press attention.” — NYT

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Epstein's Non-Prosecution Agreement + The Juror Issue Complicate The Case

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(A Legal Breakdown Via Elizabeth Huntley)

A Decision On Ghislaine Maxwell’s Appeal Is Imminent – Could She Be Freed?

Ghislaine Maxwell appeared (via audio) before the Second Circuit Court of Appeal at the Thurgood Marshall Courthouse on Tuesday, March 12th, in a very brief hearing to officially appeal her conviction on 4 counts of sex trafficking and related offenses. She is currently serving a twenty-year sentence after a jury convicted her on December 30, 2021. Maxwell will ask Circuit Judge Raymond Lohier to either overturn her conviction and set her free immediately or grant her a new trial – will she succeed?

The moment the guilty verdict was handed down in lower Manhattan on December 30, 2021, Maxwell’s lawyers announced she would appeal. But the moment is finally here – and while Tuesday’s hearing was brief, here at Houseinhabit we have all the documents revealing the arguments she has and will make to try and convince the judges to set her free.

Here’s Our Rundown of Her Case

Surprisingly, the first ground of appeal presented by Maxwell – represented by a new lawyer, Diana Fabi Samson, after she was controversially fired by her trial lawyers for failing to pay her legal bills – in court on Tuesday related to a document that all Epstein-followers will be very familiar with: The infamous 2007 “sweetheart deal” given to Jeffrey Epstein when he was first arrested and charged for crimes relating to his abuse of underage girls. The charges were ultimately pleaded down to solicitation charges – essentially, the crime of paying a sex worker  – and Epstein was given a remarkably easy ride.

The deal – hammered out by Dershowitz and Alex Acosta, the then-US Attorney who would go on to serve in Trump’s 2016 cabinet, showing again how interlinked the spider’s web of power and abuse truly is – saw Epstein serve only 13 months in prison, with day release six days a week that allowed him to walk out of the prison and go to his office between 8am and 8pm. It was, as one investigative reporter described it, not so much a prison sentence as one year of “sleeping in a crappy motel.”

Epstein continued to force his victims to visit him at his office, where they say he continued the sexual abuse even while he was purportedly serving a prison sentence for paedophilia and sex trafficking.

Epstein’s sweetheart deal, formally known to lawyers as a “non-prosecution agreement”, also includes a clause that explicitly gave any co-conspirators complete immunity from all criminal charges relating to the child sex ring.

The sweetheart deal has been the subject of much debate in more recent years, as the extent of Epstein’s crimes and the number of his associates has come to light. Acosta, who brokered the deal, ended up resigning his position in President Trump’s cabinet over the furore about how lightly Epstein was treated.

But it is this very document that forms the first and foremost ground of Maxwell’s appeal. She argues that she “has standing to enforce the co-conspirator immunity provision which, by its terms, barred this prosecution.” Essentially, she is arguing that the entire criminal trial was invalid because she is protected by the non-prosecution agreement.

In her appeal documents, Maxwell says that a prosecutor recalls that a defense attorney once said that “Epstein wanted to make sure that he’s the only one who takes the blame for what happened.”

This – and you will all know this if you followed along with the trial, as I’m sure you did – ties in nicely with one of Maxwell’s key arguments at trial: that she was simply a scapegoat for the crimes of a terrible man. In the words of her attorney in her closing submissions: “She’s being tried here for being with Jeffrey Epstein. Maybe that was the biggest mistake of her life, but it was not a crime.”

However, interestingly, while Maxwell made this argument in several different ways at trial, she did not use the non-prosecution deal to back it up. Now, she is. This is a really, really interesting fork in the road: while that deal has been heavily criticized, it has never been thoroughly assessed or overturned by a court. Could it be possible that after all this, she was protected from any prosecution this whole time? It could be.

"In the end Ms Maxwell was prosecuted for crimes that she, as a third party beneficiary to the plea agreement in Florida, should not have been prosecuted,” her lawyer argued on Tuesday.

Maxwell has made this argument before, but Judge Nathan dismissed it. But Maxwell says in her appeal that the judge d in her trial did not properly examine the non-prosecution agreement to determine whether it gives her full immunity. Specifically, she failed to hold an actual hearing on the issue, and dismissed it without hearing oral arguments. Therefore, a further examination may await us.

Now, the second ground of appeal is another one you will likely remember very clearly – the fact that a juror, Juror 50, revealed to an independent journalist after the verdict that he, like Epstein’s victims, had been subject to childhood sexual abuse. This immediately caused Maxwell to file for a retrial, arguing that the juror had been biased based on this experience. But it got worse: It also transpired that when asked in voir dire – a questionnaire given to prospective jurors to screen them for bias – he was asked if he had been a victim of sexual abuse and he answered “no”.

To properly explain to you what the judges will have to decide on this particular issue, I have to spend a bit more time dwelling in the immediate aftermath of the trial and of Juror 50’s controversial interview.

Judge Nathan, who presided over the trial, decided that in order to figure out whether a retrial was necessary, she must conduct a hearing in which the juror would give evidence under oath about his bias and his failure to answer the questions honestly. After that hearing, Judge Nathan handed down a ruling saying that there was no basis for a new trial, because Juror 50 did not display any bias on the stand, was credible and – in her opinion, honestly – said that he made a mistake on the questionnaire.

Judge Nathan also addressed Maxwell’s argument that victims of sexual abuse should not be permitted to sit as jurors on sexual abuse trials. She rejected this, noting that fraud victims frequently sit on fraud trials, and that sexual abuse should be no different. She wrote: “To hold that no rape victim could ever be an impartial juror in a rape trial would, we think, insult not only all rape victims but also our entire jury system.”

But of course, this is not the end of the matter. Maxwell, like any defendant, has every right to challenge this decision in a higher court, which is what she is currently seeking to do. Her appeal documents set out at length why the court should have found that Juror 50 was, in fact, biased and was not capable of being an impartial juror. Her appeal states that “some experiences create permanent biases”. 

But the appeal, importantly, also addresses in detail the actual hearing that Judge Nathan conducted with Juror 50, criticizing it as being too narrow and unfair.

“Juror honesty is the bedrock of the criminal jury system,” Maxwell’s appeal says. “There can be no dispute that Juror 50’s testimony established conclusively that he falsely answered three separate questions on the jury questionnaire.”

The appeal adds that “the court held a hearing narrowly confined to an inquiry about the juror’s false answers on the questionnaire”, without, they say, sufficient emphasis on whether or not he was actually biased and/or credible.

The appeal also fiercely disputes Judge Nathan’s ruling that she believed Juror 50’s testimony to be honest.

“His answers and explanations were incredible, ever shifting, and even outright contradictory. He attributed his false answers to having simply misread questions because he was tired and distracted, but then claimed that one answer was predicated on his view that a stepbrother was not a family member, and another, on his view that he did not consider that his sexual assault made him a victim of a crime – an explanation that made sense only if he had actually read and understood the questions in the first instance,” the appeal reads.

The appeal also criticizes another controversial decision made by Judge Nathan. When Maxwell filed for a retrial, she asked the court to subpoena all the journalists Juror 50 spoke to and to collect evidence about any payments made, and his post-trial activity more generally. She denied this request, and the appeal argues that this unfairly limited the scope of their ability to test his bias.

Maxwell also asked that her own lawyers should have the right to question Juror 50, and this was denied. In the appeal, Maxwell says this undermined her ability to properly interrogate his alleged bias.

Another key aspect, which was not raised during the original Juror 50 hearing, related to something he revealed to journalists in interviews: that he discussed his own abuse with other jurors in the jury room. Maxwell’s appeal argues that it was wrong for Judge Nathan to not ask Juror 50 why he chose to make this disclosure, saying that this could help the court understand the presence of any bias. 

It does not seem, at this point, that the Court of Appeal plans to recall Juror 50, or indeed the journalists he interviewed, for further questioning – but it remains possible. 

Finally – and the least exciting point of appeal – is about the sentence itself. Maxwell argues that the twenty-year federal sentence was too high because it inaccurately took into account sentencing guidelines for someone who “supervised” criminal activity. The appeal argues that there was no evidence at trial that she directly supervised any of the other co-conspirators. And in fact, there was evidence that such co-conspirators, including Sarah Kellen, were not around at the same time as Maxwell, so she could not have supervised them. Having watched every day of the trial, I have to say there might be something in this – I can’t think of any direct evidence of supervision of criminal activity committed by other associates of Epstein. 

The government, of course, fought hard against Maxwell’s appeal on Tuesday. Most importantly, they argued that the non-prosecution agreement is unenforceable anywhere outside Florida, where it was signed, and that Maxwell has no right to rely on it. 

Even if the plea deal was enforceable in Federal court rather than in Florida state court, the government argued, “She has offered no evidence that the parties to the NPA intended to confer a benefit on her specifically.” 

“Accordingly, Maxwell may not enforce the [non-prosecution agreement],” the government said.

The government also, as expected, defended Judge Nathan’s conduct around the Juror 50 issue.

“Judge Nathan concluded that Juror 50’s answers were not deliberately inaccurate, crediting Juror 50’s testimony in light of his demeanor and consistent, logical answers to her questions,” they said.

The government also brought attention to the well-settled law which states that “Post-verdict inquiries into juror conduct are strongly disfavored.”

“Permitting ‘post-verdict scrutiny of juror conduct’ would undermine pillars that undergird the jury trial right, including ‘full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community’s trust in a system that relies on the decisions of laypeople’,” the government said, citing case law.

They conclude that “Judge Nathan conducted a thorough inquiry and determined that Juror 50’s inadvertent errors on the jury questionnaire did not undermine Maxwell’s right to a fair trial.”

There’s one final aspect of Maxwell’s appeal that is worth mentioning for those who were following along closely with every development of the trial. You might remember that while we were all waiting for the jury to return a verdict, they would occasionally send notes to the judge with questions. One of these notes caused an absolute uproar between the parties. The note read:

“Under Count Four, if the defendant aided in the transportation of Jane’s return flight, but not the flight to New Mexico where/if the intent was for Jane to engage in sexual activity, can she be found guilty under the second element?”

Basically, the jury was asking whether they needed to be satisfied that Ghislaine assisted with the victim’s flight to New Mexico in order to convict her on one specific count related to that victim. Because of the intricacies of the charges and elements, Judge Nathan decided to reply to the jury by simply referring them to the jury instructions. Maxwell’s defense team argued vehemently against this – it was a very tense moment in court – but ultimately lost. Hence, it has re-appeared in the appeal.

Maxwell argues that Judge Nathan should have given a fuller response to the jury because there was a concern that the question made it sound like they thought they might be able to convict her solely on the flight to New Mexico. Basically, she is arguing that Judge Nathan’s response to the note amounted to a change in the bar that the jury had to reach to deliver a guilty verdict. 

But the government responded pithily, saying simply that “there is no likelihood—much less a substantial likelihood—that the jury convicted Maxwell solely because Jane was transported to New Mexico.”

Judge Lohier did not make a decision on the day of the hearing, as expected, but said he would give a written judgment at a later date, given no indication of how long this might take. So this leaves us wondering: how strong are Maxwell’s arguments? Could she be a free woman on the day Judge Lohier hands down his judgment? What do you think?