March 8 is Critical in the Never-Ending Saga of Ghislaine Maxwell

March 8th will be a really important hearing in the never-ending saga of Ghislaine Maxwell, who, as my readers know, was convicted on five of six counts for aiding and participating in the sex trafficking and abuse of minors by the late Jeffrey Epstein.

As my readers also know, there is the chance that the trial could be deemed a mistrial.

This is all because Juror Number 50—who has asked to go 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 asking if they or family members had suffered sexual abuse, and he said he could not recall how he had responded to either question. David is due in court on March 8th.

Since I last wrote about this, David’s attorney, Todd A. Spodek, has said in motions that his client will invoke his Fifth Amendment right against self-incrimination. The government has stated in motions that it’s looking to get immunity for David so that he may answer truthfully. It’s likely they will succeed. And further, it’s likely that if David answers (as expected) that he did not fill out his form truthfully, it’s a huge win for Maxwell’s defense—and the likelihood of a new trial increases significantly.

To explain all of this, I talked to the man who has become my guru on the points of law in this case: former AUSA for the Southern District of Florida-turned-litigator David S. Weinstein. What follows is our conversation, condensed for clarity.

WEINSTEIN: Let me guess what your question is. I heard that there were some additional pleadings that were filed.

WARD: Right. As you know, last week, the judge [Alison Nathan] denied the motion for a new trial based on something called Rule 606. But they are going to have a hearing about Juror 50 and Juror 50’s lawyer has now said his client will plead the fifth. Prosecutors are seeking internal approval for an order to compel the juror's testimony. And the government will, if they get the internal approval, submit a proposed order to the court seeking immunity for the juror to testify.

So, how does this play out?

WEINSTEIN: This significantly tips the scales in favor of Maxwell. It would appear from the fact that Juror 50’s lawyer has advised him to exercise his right to remain silent that his answers to the question “did you fill out this form correctly” are now going to be “no, I did not.”

So then the defense will posit the follow-up question of “well, did you intentionally not put the answer down there because you're trying to conceal that?” If his answer is “yes, I did it intentionally to conceal that,” that's a problem. That's a problem for the prosecutors.

Because by admitting that he filled it out improperly, [Juror 50] now gives more credibility to the defense's argument of “well, if he had answered it truthfully, we would have moved to excuse him for cause.”

The defense will also argue, “If the judge had denied the motion to strike for cause, then we potentially would have used a peremptory strike. And if we were out of peremptory strikes, we would have asked for another one. We would have had to weigh whether or not we were going to keep him, but, Judge, we would not have wanted him on the panel. And because he improperly answered that question, we didn't have access to the right answers that forced us to include him on the jury, and, you know, but for him being on the jury, we don't think there would've been a conviction.”

And that's a serious, serious problem for the prosecution.

WARD: But there are some jurors who had answered that question about sexual abuse as “yes” and were put on the jury anyway. Why was that?

WEINSTEIN: Presumably because the defense felt that they were better people to have on the jury than others—for whatever reason. And that’s the argument that the prosecution will have to lean into. But I still think what’s happened favors Maxwell.

WARD: Can you explain why Judge Nathan said she denied Maxwell’s motion for a new trial under Rule 606?

WEINSTEIN: She’s saying that, based merely on the papers she’s received, she's without sufficient factual information to rule on the papers. There's no factual support for those allegations. But it's going to be a completely different story once there's factual basis with sworn testimony.

WARD: What if he says he lied but it wasn't intentional?

WEINSTEIN: The fact of the matter is we expect to hear [that] he lied. [It] doesn’t matter if it was intentional or not. The defense will say that if he had answered truthfully, they would have been entitled to inquire further and ask, “Is what happened to you going to affect your ability to sit as an impartial juror and only decide the case based on the facts that you've heard in court?” But they didn’t get to ask that question. And even his answer is “actually, it would not affect my ability to sit as an impartial juror. That's part of who I am, but I'm just going listen to the facts and the evidence that [are] presented and it's upon that alone [on] which I'm going to base my verdict”—well, that supports not striking him for cause. And then the defense says, “Well, you know what? We still don't like it. We could have used a peremptory strike if we’d had the right information.” That's a good argument on their part.

WARD: What about the question of how much he swayed other jurors because of his experience? That’s something he has said he did do in media interviews.

WEINSTEIN: Well, the defense will say, based on what he has said, clearly he had an effect on the jury. And arguably, he was not just relying on the evidence. The prosecution will say, “Well, people come into the courtroom with life experience, and you're entitled to use your life experience.” But the defense does have [a] strong argument. It’s going to be an uphill battle for the prosecution. It's going to be a much steep[er] climb for them. If he says, “I intentionally left that off, it was not a mistake. I did it on purpose. I wanted to be on this jury”—that's going be a big problem for them.

WARD: Do you think he will get immunity?

WEINSTEIN: Yes, because if they don't give him immunity, then he doesn't answer the questions. And then there's no basis for the judge to rule on the motion. And then when it gets up to the Court of Appeals, the Court of Appeals is going to then say to the prosecution, “You could have prevented this error. So therefore, you know, you're playing the system here.” That's not going to sit well at the Circuit Court of Appeals.

WARD: So, March 8th is very important. Will we get an idea as to how the judge will rule?

WEINSTEIN: Well, she’s unlikely to rule from the bench. She’ll deliberate carefully because there are other courts who are going to be reviewing that decision.

WARD: Will Maxwell be at that hearing?

WEINSTEIN: Yes, she absolutely has to be at that hearing. It's a critical stage of the proceeding. So it'll be interesting.

WARD: And so then the judge will take some time to rule, but, as you’ve said before, there's a window of 75 days.

WEINSTEIN: Well, if Judge Nathan rules and says, “Yes I’m going to throw out the verdict based on the juror misconduct,” then she sets a new trial date, 75 days out. And then the prosecution has to decide, “Are we going to try Maxwell again? What are we going to do?” I suspect they'll say yes, but you know, that's the next step.

WARD: Okay. Really helpful, David.

WEINSTEIN: You're welcome. Always glad to help.