Loose lips sink ships, so the saying goes.
And when the ones blabbing are jurors from the Ghislaine Maxwell trial, the “ship” may be her guilty verdict.
Maxwell was convicted last month of sex trafficking and of luring teenage girls to be sexually abused by Jeffrey Epstein between 1994 and 2004.
The verdicts were the culmination of a three week trial in Manhattan federal court during which prosecutors called 24 witnesses and defense attorneys called nine. It took the jury 40 hours of deliberations over the course of six days to find Maxwell guilty on five of the six counts brought against her.
But remarks made by two of the jurors to the press have now called that verdict into question. In interviews about the case, the jurors revealed that they had been victims of sexual abuse themselves, that they described their experiences with the other jurors, and that this influenced the other jurors to convict Maxwell.
Whether a mistrial will be declared and the guilty verdict thrown out turns on two separate issues.
The first is whether the jurors divulged on their court-issued questionnaire the fact that they were victims of sexual abuse, and if not, whether that fact would have resulted in them their discharge from the panel “for cause.”
The second is whether the statements made by these two jurors to the rest of the jury during deliberations constituted an improper outside influence and therefore violated Ms. Maxwell’s Fifth and Sixth Amendment rights.
In a media interview with The Independent, the first juror – who identified himself only by his first and middle name, Scotty David – stated that, during deliberations, he told the other jurors that he, too, had been sexually abused as a child:
David knows that sometimes you can misremember small details of traumatic memories without ever doubting the core of the memory. He knows that because he is himself a survivor of sexual abuse.“I know what happened when I was sexually abused. I remember the colour of the carpet, the walls. Some of it can be replayed like a video,” he said. He explained this to the jury.“But I can’t remember all the details, there are some things that run together.”So he knew that some misremembered details doesn’t mean the memory itself didn’t happen.There were also questions from the jury about why the girls didn’t come forward earlier.But David said he knows what that’s like, too. “I didn’t disclose my abuse until I was in high school,” he said.The jury room went dead silent when he shared his story, he told The Independent.
In a separate interview with Reuters, David explained that he revealed his own history of sexual abuse as a child only after some jurors expressed skepticism about the accounts of two of Maxwell’s accusers. According to Reuters:
He said that after some of the jurors questioned the accuracy of the two women’s memories, he decided to share his own experience of being sexually abused as a child. He said that he remembered most important elements of what happened to him, but not every single detail. That swayed some jurors, he said. “When I shared that, they were able to sort of come around on, they were able to come around on the memory aspect of the sexual abuse.”
David then sat for an interview with DailyMail.com during which he explained that “he had helped the other members of the jury understand things from a victim’s point of view and explained how you can’t remember all the details of traumatic memories.”
During the DailyMail.com interview, David was asked if he revealed his experience as a victim of sexual abuse history on the questionnaire that the court required each prospective juror to fill out during the voir dire process.
David responded, “No they don’t ask your sexual abuse history. They didn’t ask it in the questionnaire.”
That was not accurate, however. Question 48 of the questionnaire asked, “Have you or a friend or family member ever been the victim of sexual harassment, sexual abuse, or sexual assault? (This includes actual or attempted sexual assault or other unwanted sexual advance, including by a stranger, acquaintance, supervisor, teacher, or family member.)” There were three boxes to tick: Yes (self) Yes (friend or family member) and No.
When this was pointed out to him, David remarked that he did not remember the question. In his interview with Reuters, David admitted that he “flew through” the questionnaire.
David stated that the question of his experience of sexual abuse was never raised.
We went in front of the judge and there were all the lawyers in the room and that’s where they asked me some questions. They asked me what I do, what I like to do for fun. And if I can be fair and impartial and it was literally like 30 second long and then I was out of the room.
In an interview with the New York Times, a second juror also admitted to past sexual abuse. As reported on Jan. 5 by the Times, that juror, who requested anonymity, “said that they, too, had discussed the experience during deliberations and that the revelation had appeared to help shape the jury’s discussions.”
Since then, Maxwell’s legal team claims to have identified a third juror, and possibly even a fourth, who they believe lied on their questionnaires about being abused.
Upon learning of the two jurors’ statements, the government filed a letter on the court’s docket informing Judge Alison Nathan about the development.
The Government has become aware that a juror has given several interviews to press outlets regarding his jury service in this case. While the Court instructed jurors that they were free to discuss their jury service with anyone of their choosing, some of the statements, as related in the media, merit attention by the Court. In particular, the juror has described being a victim of sexual abuse. Assuming the accuracy of the reporting, the juror asserted that he “flew through” the prospective juror questionnaire and does not recall being asked whether he had been a victim of sexual abuse, but stated that “he would have answered honestly.”
The prosecutors asked the court to schedule a judge-supervised hearing at which Mr. David could be questioned, and suggested that the Court’s staff ask the juror “whether he would like counsel to be appointed in connection with it.”
The same day, Maxwell’s defense team followed up with two letters of their own. In the first, defense attorney Christian Everdell stated:
It has come to the attention of the defense that one of the twelve jurors in this case has been giving oral and videotaped interviews to various members of the press concerning the jury deliberations …. Among other things, the juror told reporters that he disclosed to the other members of the jury during deliberations that he was a victim of sexual abuse and further described his memory of those events. According to the juror, his disclosure influenced the deliberations and convinced other members of the jury to convict Ms. Maxwell.
Everdell also argued that if the defense prevailed in demonstrating juror misconduct, it would present “incontrovertible grounds for a new trial.” In such case, said Everdell, all of the defense’s other post-trial motions would be moot. He therefore requested that in order to preserve “precious time and resources,” the court set a briefing schedule for the juror issue and defer doing so for the defendants’ other post-trial motions.
Soon after Everdell filed his letter, one of his co-counsel, attorney Jeffrey Pagliuca, submitted his own letter responding to the government’s correspondence.
Pagliuca pushed back on the government’s request for a hearing saying that “based on undisputed, publicly available information, the Court can and should order a new trial without any evidentiary hearing.” He also resisted the government’s request that the court contact the juror and inquire whether he wanted an attorney.
[I]t is not the proper function of the Court to contact the juror and suggest that he retain an attorney or to secure the appointment of an attorney on his behalf …. [A]ny such action would undermine the search for the truth and thus potentially compromise Ms. Maxwell’s constitutional right to a trial by an impartial jury.
Finally, Pagliuca stated that if the court were inclined to hold a hearing, “all the deliberating jurors [would] need to be examined,” not just the one referred to in the government’s letter.
(As an aside, I find it interesting that two defense letters were filed rather than one. It could suggest a lack of coordination between the lawyers, which might indicate that the team cohesion has been a fractured, perhaps by internal finger pointing in the wake of the guilty verdict.)
Judge Nathan responded with an order setting a briefing schedule for Maxwell to move for a new trial based on the juror’s statements. In her order, Judge Nathan directed that “[t]he parties should address whether an inquiry of some kind is permitted and/or required, and if so, the nature of such an inquiry.”
The defense papers are due by Jan. 19, and the government’s response is due three days later, on Feb. 2.
In the meantime, Judge Nathan agreed to offer juror Scotty David a court-appointed attorney – a decision that ultimately was rendered moot when David retained private counsel.
Judge Nathan also stated that if the juror wanted to be heard “on the appropriateness” of his being called to testify at a hearing, he could do so, and she set Feb. 9 as the deadline for his lawyer to file legal arguments on the issue.
Finally, Judge Nathan refused to hold in abeyance the post-trial briefings on all issues. At this point, it’s impossible to forecast how this augurs for the defense.
On the one hand, Judge Nathan’s unwillingness to defer briefings on other trial issues could suggest that, at this juncture anyway, she is unpersuaded that the juror’s revelations warrant setting aside the verdict.
On the other, it could indicate nothing more than Judge Nathan’s interest in keeping things moving, a trait we saw during the trial. Keep in mind that Judge Nathan has been nominated for a seat on the Second Circuit, and perhaps she thinks that if this case is allowed to linger, it will delay her confirmation.
Finally, it’s possible that Judge Nathan wants to gauge the strength of Maxwell’s other legal arguments before deciding if it would be less injurious to her judicial record simply to scuttle the verdict on the juror issue and prevent the Second Circuit from reviewing her trial rulings.
So what effect, if any, will these jurors’ revelations about their past sexual abuse have on the guilty verdict in the Ghislaine Maxwell case?
There are two primary areas of inquiry: the first centers on their responses to the questions posed to them on the juror questionnaire, and the second has to do with what they said to other jurors during deliberations. Let’s drill into it.
Many judges employ written questionnaires during the voir dire process to help screen prospective jurors.
The form is given to all of the potential jurors in the general pool – who are called venirepersons – and includes questions on a range of topics designed to help the parties evaluate the venirepersons and determine if they possess any biases that might affect their ability to be fair and impartial.
After all, the Sixth Amendment guarantees a criminal defendant the right to an impartial jury.
The responses given to those questions provide the basis for further questioning by the parties, often outside of the presence of the other prospective jurors, where the questionnaire responses can be explored in greater depth.
The statements made by the juror, both on the questionnaire and in response to follow-up questions, can form the basis for either party to challenge that juror’s fitness to serve on the jury. Such challenges fall into two broad categories: those that are “for cause” and those that are “peremptory.”
A juror will be removed “for cause” if he or she cannot be fair. Among other things, this could be because of a demonstrated bias, an inability or unwillingness to follow the law or perform the duties of a juror, or because the juror fails to meet the qualifications for jury service under 28 U.S.C. § 1865. There is no limit to the number of “for cause” challenges each side can assert.
And, under 28 U.S.C. § 1866(c), the trial judge also may discharge a prospective juror for cause if that person “may be unable to render impartial jury service,” his service as a juror “would be likely to disrupt the proceedings,” or if the court determines that his service as a juror would “adversely affect the integrity of jury deliberations.”
In contrast, peremptory challenges allow parties to remove a prospective juror for almost any reason at all, as long as it’s not because of the juror’s race or gender. Each party has a limited number of these challenges, with the amount turning on the whether the highest crime charged is a misdemeanor or felony, and if the government is seeking the death penalty.
As the Supreme Court has stated:
Voir dire examination serves to protect that right by exposing possible biases, both known and unknown, on the part of potential jurors. Demonstrated bias in the responses to questions on voir dire may result in a juror’s being excused for cause; hints of bias not sufficient to warrant challenge for cause may assist parties in exercising their peremptory challenges. The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.
In Maxwell’s case, the court utilized a questionnaire, and the instruction sheet emphasized – with the words in bold, all caps and underlined – that each juror was “sworn to give true and complete answers to all questions.” Here’s a photograph of a portion of the instruction page:
Further, at the completion of the questionnaire, each prospective juror was required to “declare under penalty of perjury” that their responses were “true and correct.”
Question 48 on the questionnaire asked whether the prospective juror had ever been the victim of “sexual harassment, sexual abuse, or sexual assault,” and if so, to provide details.
The first issue, then, is whether the jurors answered that question honestly. With respect to juror Scotty David, government’s request that David be afforded counsel – and the court’s willingness to appoint an attorney for that purpose – reflects a concern that David may have perjured himself in his response to that question.
Yet, whether David gave an incorrect answer – deliberately or carelessly – does not mean that Maxwell automatically gets a do-over.
The Supreme Court considered this issue in 1984 in a case called McDonough Power Equip., Inc. v. Greenwood. In that case, a products liability action, the plaintiff had sued the McDonough Power Equipment company after his feet “came in contact with the blades of a riding lawnmower” manufactured by it. The case proceeded to trial, and during the voir dire, the plaintiff’s lawyer, while addressing the entire panel of prospective jurors, asked them whether anyone had an immediate family member who had been injured in an accident.
One of potential jurors – a man named Ronald Payton – did not respond to the question, and he was eventually selected to serve on the jury. After a three-week trial, the jury found for the defendant.
Thereafter, the plaintiff filed a motion stating that, after the verdict was rendered, he had learned from a third-party that at some point prior to the voir dire, Payton’s son had been injured in the explosion of a truck tire.
The plaintiff subsequently moved for a new trial, arguing that “Payton’s silence had prejudiced their right to exercise peremptory challenges.”
The case made its way to the Supreme Court which refused to upset the trial court’s verdict. The High Court declared that ‘”a litigant is entitled to a fair trial but not a perfect one,” and explained:
Trials are costly, not only for the parties, but also for the jurors performing their civic duty and for society which pays the judges and support personnel who manage the trials ….To invalidate the result of a 3-week trial because of a juror’s mistaken, though honest, response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination ….We hold that to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.
McDonough thus set out a two-step test for determining whether false responses given by prospective jurors during the voir dire process warrant a new trial. First, the court must assess whether the question that elicited the false response was “material.” Second, it must ascertain whether a correct answer would have resulted in the prospective juror’s removal for cause.
While McDonough was a civil case, the Court of Appeals for the Second Circuit – whose decisions serve as controlling precedent for the trial court in the Maxwell case – has applied this standard to criminal prosecutions where one’s liberty, not just one’s money, is on the line.
The Second Circuit also found – in U.S. v. Langford – that the McDonough test applies to “not only inadvertent nondisclosures but also [to] nondisclosures or misstatements that were deliberate.”
As Maxwell’s trial revolved around allegations that she groomed and trafficked minors for Jeffrey Epstein to sexually assault, these jurors’ own histories of suffering sexual abuse were undeniably material.
The central issue is whether these prospective jurors would have been removed for cause if they had answered question 48 truthfully.
We’ll likely never know. It’s too pat to say that these jurors’ sexual assault histories would have automatically disqualified them from serving on a case about sexual assault
To be sure, these jurors’ histories of abuse would have provided ground for both sides to have inquired about the effect, if any, that those experiences had on their ability to follow the law and judge the case based only on the proof elicited at trial. But it’s entirely possible, if not probable, that these jurors would have stated that, despite their experiences, they still would’ve been fair and impartial. In fact, juror Scotty David told Reuters that that’s exactly what he said to the court and counsel, even though he did not reveal that he was a victim of sexual abuse.
A person’s status as a victim of a crime that is similar to that for which the defendant is on trial could give rise to a peremptory challenge against him, but it doesn’t automatically disqualify him for cause.
That said, if any of these jurors admits that they were biased from the get go, the McDonough case would mandate that Maxwell’s guilty verdict be thrown out.
That hasn’t happened yet, and unless these jurors say something stupid to the press in the next few days (always a possibility) all of these jurors will soon be lawyered up. Absent the government promising them immunity – which, let’s face it, will never happen – a hearing will be a pointless endeavor. No juror in their right mind would admit to having lied to the court about being fair and impartial – each will invoke their Fifth Amendment right to remain silent, and no new information will be learned.
This is precisely what defense attorney Jeffrey Pagliuca was getting at when he wrote to the court that its appointment of counsel for juror Scotty David “would undermine the search for the truth and thus potentially compromise Ms. Maxwell’s constitutional right to a trial by an impartial jury.”
This likely also explains why neither side has yet to file a letter to the court about the second juror’s remarks to the New York Times (or about the third and fourth jurors’ statements, for that matter).
More than likely, Maxwell’s lawyers and the government prosecutors are racing to get statements from these jurors. The defense team wants to obtain affidavits admitting to bias, and the prosecutors want ones in which the jurors aver that they were able to be, and were, fair and impartial.
The sides are not only trying to beat each other, but are endeavoring to do so before the jurors retain counsel. At that point, neither the government nor the defendant’s lawyers will be allowed to communicate directly with them.
If Maxwell’s defense team can’t convince the court that the jurors who concealed their personal histories of sexual abuse should have been struck for cause, they still might be able to overturn Maxwell’s convictions.
According to juror Scotty David’s statements to DailyMail.com, he “helped the other members of the jury understand things from a victim’s point of view and explained how you can’t remember all the details of traumatic memories.”
And he told Reuters that when some of the jurors questioned the credibility of two of the accusers’ memories, he was able to “sway some jurors” by telling them his own experience of being sexually abused as a child. This allowed the other jurors to “to come around on the memory aspect of the sexual abuse.”
The second juror told the New York Times that when he or she recounted being abused, it “help[ed] shape the jury’s discussions.”
At common law, once a jury reached a verdict, a juror is not allowed to testify about the jury’s deliberations in order to “impeach,” or invalidate, the verdict. This principle was developed to encourage finality of verdicts and to protect jurors from being harassed after the case was concluded.
Yet because strict adherence to the “no impeachment” rule could lead to injustice, Congress recognized three narrow exceptions to it when it codified, and thereafter amended, the rule in Federal Rule of Evidence 606(b).
One of them is that jurors may testify about any “outside influence” that was “improperly brought to bear on any juror.” Under this exception, while jurors may tell the court that extrinsic evidence was introduced into their deliberations, they may not give testimony about the subjective effect that evidence had on them.
The threshold question, then, is whether Scotty David’s comments were an “outside influence.”
In Warger v. Shauers, the Supreme Court explained that outside influences don’t include “the general body of experiences that jurors are understood to bring with them to the jury room,” but must come from sources “external” to the jury, such if someone outside of court told a juror information about the defendant that had not been presented at trial.
If Scotty David’s remarks about how his memory worked regarding his own sexual abuse were simply part of his “general body of experiences,” they wouldn’t fall into the category of improper outside influence.
His comments would fall into that camp, however, if they are viewed as the opinions of an unsworn expert witness. This would implicate the Sixth Amendment, which requires that a jury’s verdict be based only on the evidence produced at trial, as well as the Fifth Amendment, which guarantees to criminal defendants the right to confront or cross-examine the witnesses against them.
If Judge Nathan determines that Scotty David’s statements (or those of any of the other jurors) rose to the level of an outside influence, she must then determine whether such information actually prejudiced Maxwell.
But since jurors are not allowed to testify about the effect that outside information had on their mental processes – a rule that lends an “Alice in Wonderland quality to the discussion,” as one court described it – Judge Nathan would have to apply an objective test, assessing for herself the statements’ probable effect on a hypothetical average juror.
To do that, she will have to consider the entirety of the trial evidence and ascertain if there is a reasonable possibility that the verdict would have been different had those remarks not been introduced.
The likelihood of Maxwell’s conviction being tossed out will turn in large part on what the jurors have to say when they are questioned in court. From the little we know so far, it seems like an uphill climb for Maxwell.
Still, the government filed a letter with the court this week stating that it will drop the open perjury charges against Maxwell if her convictions are allowed to stand. This may indicate that they were not as quick on the draw as Maxwell’s team, and that the defense lawyers obtained affidavits from the jurors that could well upend the verdict.
Regardless of where you stand on the issue of Maxwell’s guilt, we all should agree that the Constitution guarantees every criminal defendant a fair trial.
Did Maxwell get that? The jury’s still out.
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