Thoughts On Ghislaine Maxwell's Appeal:
Why I think It's Unlikely to Succeed
First off, thank you everyone for bearing with me. These past weeks, I have not been posting here because I’ve been working on the book I’m co-writing with James Patterson about the Moscow Murders. I’ll be back soon enough!
It’s very hard, if not impossible, I find, to immerse yourself in deep storytelling on too many fronts at once. You can certainly write multiple things that are top-of-mind, and bounce off of the news, but as you know, I prefer, when possible, to bring you reporting, not just insights.
But, given that Ghislaine Maxwell’s criminal trial was the genesis of this newsletter, I did want to give you my thoughts about Maxwell’s appeal. Oral arguments were made last Tuesday in New York. Maxwell was not present but reportedly listened in on the phone from prison in Florida.
The main argument made by Maxwell’s defense was that Maxwell was protected by the strange, controversial Non-Prosecution Agreement of 2007, entered into by Epstein and then U.S. attorney in Florida Alexander Acosta, in which Epstein agreed to plead guilty to two state counts: procuring a minor for prostitution and soliciting a prostitute. In exchange he got a cushy sentence and avoided the much more serious potential charges of a federal investigation.
However there was a crucial clause in the NPA in which Epstein asked that no one else be charged with his crimes, for which he took sole responsibility.
“The United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to Sarah Kellen, Adriana Ross, Lesley Groff or Nadia Marcinkova.”
He did not name Maxwell.
I have long assumed that is partly because by 2007, as I reported in Chasing Ghislaine, Maxwell was pretty much out of the picture of Epstein’s depraved Palm Beach world. Ironically, Maxwell was trying to get away from Epstein, and was dating the tech billionaire Ted Waitt. I also wonder, given everything I know about Maxwell, if she saw herself as socially above and separate from the four women named. She had an extraordinarily privileged upbringing as the daughter of the late tycoon Robert Maxwell. This was an identity she clung to long after Robert Maxwell’s strange death, and his subsequent disgrace.
Based on what I know of her character, she would have not wanted to be clumped with them. (None of them have been prosecuted.)
Also, the time-frame of the crimes discussed in the NPA is 2001-2007.
The sexual crimes for which Maxwell was convicted mostly happened in an earlier decade. Of the four accusers who took the stand, “Jane” (a pseudonym), Annie Farmer, “Kate” (another pseudonym) all talked about seduction and rape that occurred in the 1990s. Only one, “Carolyn”, said the abuse she suffered began in 2001.
Maxwell’s defense argues this timeline puts her beyond the statute of limitations. The counter-argument to that is that there is an exception for sexual crimes against minors.
Federal prosecutors have long argued that the NPA is not binding outside of Florida. That is precisely why they felt able to indict Epstein federally so many years later in 2019 in the Southern District of New York. That indictment, crucially, did mention the word “conspirators.”
But you can see why the legal idea that Maxwell was “safe,” especially after Epstein died in prison in 2019 under weird circumstances, is fragile, at best.
Maxwell’s lawyers have also made the following arguments, among others, in favor of overturning her sentence:
One of the jurors, Scotty David, had omitted to disclose he’d been sexually abused on a questionnaire.
The witnesses were flawed because they had “faded, distorted and motivated memories.”
Maxwell is a scapegoat for Epstein and other men.
To take Point One: I spoke to legal experts at the time about Scotty David - and, as you may recall, none thought the omission was a deal-breaker legally.
Point Two: There’s no question that yes, the witnesses did have imperfect memories. That was highlighted again and again during cross-examination - most effectively by blonde defense attorney Laura Menninger, who was disarmingly soft-spoken.
Menninger would ask gently about what each of the four main accusers had told the FBI when first questioned about Epstein. Sometimes, it became evident, there was no mention of Maxwell at all ,or just a fleeting or innocuous one.
But when questioned again, after Epstein’s death, when there was money on the line, due to the emergence of the Epstein Victims Compensation Fund, there were now memories of Maxwell.
As Meninger punched the disparities home, it was a humiliating experience for the accusers giving evidence. They were forced to trying to explain why at one time they’d said one thing, but another time, another. I remember thinking at the time, sitting in court, watching Menninger do her thing, that it was like watching a train-wreck. You squirmed; you hated what was happening - but you couldn’t look away.
However, I find in general that endings are very important in trials.
And by the end of Maxwell’s trial, the consistencies in what the witnesses said were more striking than the inconsistencies. A point assistant US attorney Maureen Comey - who is tall, like her dad, former FBI director, James - made powerfully and dramatically when she pointed at Maxwell during her closing, saying “that woman”was responsible for the horrific sexual criminal abuse we’d heard about. Again, and again, and again.
Memories, we heard during expert-witness testimony, are inconsistent. And memories of sexual abuse victims, especially so. Most of us don’t remember details of trauma correctly but we do remember that it happened.
The general pattern of events in the stories of the four accusers - Jane, Kate, Annie and Carolyn - Comey pointed out were strikingly similar. The role of Maxwell, as described by them, Comey pointed out, was also strikingly similar. Each woman - then a girl - was lulled into a false sense of security and “normalcy” because of Maxwell’s presence around Epstein. It was after that the abuse and in some cases trafficking began.
So, given that the issue of the witnesses’ memories and motivations were addressed at trial, I don’t see how that argument carries much weight on appeal.
Point Three: There were other people - men, mostly - besides Maxwell who aided Epstein’s crimes.
No question this is true. One of the most infuriating things about that trial was how, given its focus on Maxwell, there was no time or space allotted to exploring the avenues presented by the extraordinary number of names of powerful men either listed on flight-logs, mentioned in passing, or seen in photos with Epstein.
All the journalists and onlookers around me were frustrated that we couldn’t go down these rabbit holes.
I’ve said repeatedly that the role of the men in Epstein’s life is still not fully explained. Nor is the money they invested with him, a man with no footprint in the markets as a money manager or investor.
It’s also true that the more familiar I’ve become with the system of Justice in this country, the more flawed I find it. The little fish who flip can escape penalty. And money buys off witnesses and jurors. The civil settlements besides the amounts paid out by the Epstein estate were not discussed. But my sources say there are many.
So, along with Maxwell’s attorneys, I wish that the buck did not stop with Maxwell.
But does this exonerate Maxwell? Does this render her conviction and sentence invalid?
I’d argue it does not.
Below is a conversation I had with Florida attorney, David S. Weinstein, a former federal and state prosecutor, about her appeal:
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