Why Does it Matter if Juror 50 Lied in the Ghislaine Maxwell Trial?

Last week saw the critical hearing in the question of whether Ghislaine Maxwell will face a re-trial.

I was not in court for this one (I was on spring break with my kids), but I heard from a friend who was there that Maxwell looked quite different from the confident person she’d presented at trial. It wasn’t just her prison clothes and the streaks of grey in her unkempt, frizzy hair; she looked downcast and anxious, I was told. (Her sister Isabel, by contrast, was friendly to reporters.)

According to the court transcript and reports, Judge Nathan asked Juror Number 50 why he had wrongly answered the question about whether or not he had experienced sexual abuse. (On the form, he said he hadn’t experienced any such abuse, when he in fact he had.)

Juror Number 50 had been granted immunity from prosecution before the hearing, so he answered the questions under oath instead of taking the fifth. He essentially said his answer had been a mistake. He explained he’d been in a rush, that he’d been getting over a break-up, and that he didn’t normally dwell on the abuse and it was not something he talked about.

Judge Nathan pushed back on that in her subsequent questioning:

NATHAN: At the time you filled out the questionnaire, did you think that your history of sexual abuse would be something that the parties and I would want to know in order to determine if you could be fair and impartial?

JUROR NUMBER 50: Looking back thinking now, yes, that's a question that would have been asked, but I honestly didn't think about it. I really don't think about my sexual abuse, period. I don't tell very many people.

NATHAN: After the trial ,you gave interviews in which you did tell people about your history of sexual abuse.

JUROR NUMBER 50: Yes.

NATHAN: . How do you reconcile what you just said with that?

JUROR NUMBER 50: So I didn't -- this is going back to a deliberation thing, so I have to think about how to say this….

My friend felt that the atmosphere in the courtroom was intense and that Judge Nathan was clearly displeased that Juror Number 50 had answered the question incorrectly.

I thought that, given this, the chance of a mistrial is high. (Both defense and prosecutors have to submit their briefs on the issue today.) But, according to my legal guru, David S. Weinstein, former AUSA for the Southern District of Florida-turned-litigator, what happened last Wednesday likely swings the judge’s ruling in favor of the prosecution. In other words, he’s reversed himself from what he’d told me previously. He says he now thinks it unlikely the judge will rule for a mistrial.

Here’s our Q & A, condensed for clarity:

WARD: I want to go over with you what happened last week and why I gather changed your mind. We know that the judge was very tough on Juror 50 in the courtroom.

WEINSTEIN: And, quite frankly, deservedly so. She had to get the answer to the critical question here, which was, Did you do this on purpose because you wanted in on the jury and you had an ulterior motive, or Did you make a mistake and how did you make your a mistake and how did you get to your mistake? I need to know the answers to that because otherwise I may very well overturn this verdict.

WARD: She didn't say that last part though.

WEINSTEIN: No, no, but I think that was implied or inferred from both her tough questions and the way that she's been dealing with this.

WARD: Well, I've not read that that's the inference.

WEINSTEIN: That’ s certainly the inference that you can see the defense is concerned about. The legal standard is that if there was misconduct, the verdict should be overturned. But as the judge who presided over the trial, she's got to help to build a record to preserve the conviction.

WARD: But can you explain why it matters so much whether or not Juror 50’s incorrect answer was a mistake or intentional? Because the bottom line is that, had he answered it correctly, the defense surely would've had the right to have used a peremptory strike, or a strike for cause. And you’ve said to me in the past that the defense could now push Judge Nathan to bring in the jury for questioning about his influence over them, given that he has talked to the media about the impact he claims he had on the jury specifically. He's talked publicly about that.

So I'm not understanding how optimistic you are now for the prosecution, given the defense seems to me to have a lot of ammunition to play with here.

WEINSTEIN: Correct. But I think what is critical here is what the prosecution mentioned in their reply brief to the motion for a new trial. That’s the fact that there were other potential jurors who had answered these same questions truthfully and [answered yes to the question of a personal experience with sexual abuse]. Then the defense got to inquire more from them, but ultimately those people didn't rise to the level of having the defense strike them for cause. (I don’t know, however, if any of them made it to the final jury.)

WARD: Let's just break that down.

WEINSTEIN: So, other similarly situated jurors—eight I believe—who did truthfully answer the question about whether there had been either abuse against them in the past sexual harassment against them or [if] they were aware of abuse or sexual harassment of coworkers, of friends, [or] of relatives, and said yes. And those answers allowed the defense and the prosecution to ask follow-up questions as to whether there was a bias against Maxwell that was going to exist. And, as I’ve said, I don’t know what ultimately happened to them—whether they made it to the final 12—but we do know from prior briefings by the government they were not struck for cause, meaning that the defense did not argue that they were unable to [be] impartial just because of their admitted sexual abuse history.

That is why the critical question around Juror #50 is :Did you do this intentionally to make sure you got on the jury, or did you do this inadvertently or unintentionally?

And, based on the answers he gave and the fact that Judge [Nathan] didn't go any further at this point, I think one can see that she was satisfied with his truthful answer.

WARD: What do you mean? How can you tell that she was satisfied with his truthful answer? I don’t understand.

WEINSTEIN: For the moment, she seems to have accepted what he said as true. I say that because she didn't rule from the bench and say, I think he's not being truthful. I'd encourage both sides to give me and brief me on examples of situations where witness was untruthful.

WARD: Right. She didn’t say that, no. She asked for briefings due today.

WEINSTEIN: So I think that the odds would've been greater for the defense to win, if his truthful answer had been, “I did it on purpose because I wanted to get seated on the jury. I specifically misled everybody here and hid this from them.” I think that would've increased the defense's argument and their chances for more than 50%.

However, the defense will likely say that, regardless, had he answered the question truthfully, they would've inquired further of him and asked him, “Is there any other bias at some point that's going to influence you in reaching a verdict in the case that you're selected? Or is there anything that you're going to do that's going to force you to make your decision based on something other than the evidence you hear in the courtroom.

If I'm the defense, I'm going to argue, Had we known that he had this baggage and this stuff in the background, we would've pushed and we would've pressed. And we would have asked two or three more questions to either show that he'd be a cause challenge or to give us enough ammunition that we really didn't like him that much. And we would've used a peremptory. And so that argument still exists.

WARD: Last time we spoke, you told me that either way—whether he lied intentionally or not—it's not good for the prosecution. So why does what happened last Wednesday matter so much in your mind? We've come down to whether or not the intent was to lie or not. Why is that so important?

WEINSTEIN: You're entitled to come into the courtroom with life experience and to use that life experience to determine how you interpret evidence and answers and things you're presented with. One of jury instructions that talks about reasonable doubt essentially says: Think about how you make decisions in everyday life, whether or not you are going to engage in a business transaction you have doubt about it. And that's what you need to use to go in there. So you're entitled to use your everyday experiences to help you determine what is or isn't something you're going to rely on. And so whether it's subterfuge on his part or truth does become very important because then that governs how you're going to believe anything else he said to you.

As I’ve said, I still think the defense has a chance to make an argument to the court that Even though he now tells you it was inadvertent, we believed that had we known more, we would have inquired further and we would have had answers. And already that would've allowed us to decide whether or not we were going to exercise a cause challenge or try to get one or exercise a peremptory going into this. And we've been deprived of that. And you can't speculate on that. And we believe that that's enough to allow us to get a trial here.

WARD: In reading the transcript, the judge seems a little skeptical when [Juror 50] says that he didn’t talk about his abuse often. She points out to him that, after the trial, he went and gave interviews, telling the entire world about his history of sexual abuse. And you can see in the line of questioning, she's pretty rough on him.

WEINSTEIN: Well, and deservedly so. If on the one hand you're telling me at the time I answer that my sexual abuse is not something I talk about and then right after the verdict, you're going out and talking and telling all these people, don't you think that's going to come back to bite you? You're either naive or, again, you're not being truthful.

WARD: Right. Well, I'm seeing in the transcript that the defense lawyer Christian Everdell wanted the judge to ask Juror 50 about his healing process and about the nature of his abuse to see if it was similar to the testimony of the witnesses we heard in court because Everdell seems to be suggesting that the lens through which he saw the witnesses could affect his ability to be impartial. But the judge replied she wouldn’t do that because Juror 21 had talked about familial abuse but, in that case, the defense didn't propose any comparable follow-up questions. The questions went to the core questions of impartiality and fairness.

WEINSTEIN: Right so this where her decision starts to turn on the question of How did you, the defense, treat other jurors who were similarly situated to this particular juror? If you had known all these answers, did you inquire more of those other people? Did you stop inquiring some of these other people? To the judge that's very important. That’s the rationale behind whatever decision she makes.

Again, keep in mind that it is inherently difficult for the defense to prevail on these types of jury misconduct issues unless it is clear that's that the misconduct had taken place and then somehow influenced the jurors. The defense [was] building toward that, which is why they wanted to bring in these other jurors to find out what impact, if any, he made had on them, and she's denied the defense the chance to do that so far. That doesn't mean that she might not re-think after she's had a chance to get additional briefing by both sides.

WARD: Right.

WEINSTEIN: So it's still not over yet, but, again, if I was the defense and I was the prosecution, not only would I be working on what additional briefing points I'm going to make, I'd be getting ready for sentencing. Because that's where the judge headed it next. And this issue of Juror 50 becomes one that the Court of Appeals is going to consider.