As the prosecution wrapped up its case against Ghislaine Maxwell, the government came under criticism by some prominent journalists and others for decisions about how it presented its case.
Though only time will tell the effectiveness of the government’s strategy, former prosecutors and an attorney for Jeffrey Epstein victims argue that many of the criticisms of prosecutors stem from misconceptions of the government’s objectives in attempting to convict Maxwell of the crimes charged.
“There Are Always Missing Pieces”
One of these experts, Mitchell Epner, served as a federal prosecutor who led intake on sex-trafficking cases in the District of New Jersey in 2003 and 2004.
“I think that the prosecution is doing a very good job of trying this case in order to try to convict Ghislaine Maxwell,” said Epner, who is now of counsel with the firm Rottenberg Lipman Rich PC. “And I think the people who are disappointed with the way this trial is going do not understand that this is a trial, not an inquest.”
Experts note that many expected that the Maxwell trial would act as a reckoning for the alleged and convicted crimes of Epstein, the disgraced financier who pleaded guilty in soliciting minors for prostitution in 2008. Epstein was found dead in a Manhattan federal jail cell before he could be tried for sex trafficking.
Many also hoped that proceedings would focus on Epstein’s wealthy and powerful associates, including former U.S. Presidents Bill Clinton and Donald Trump, billionaire Les Wexner, the U.K.’s Prince Andrew, and several other members of the financial and political elite.
That would be the proper avenue of exploration of an inquest, Epner said.
“An inquest is an open inquiry into what happened in a certain situation,” the ex-prosecutor told Law&Crime. “Inquests are much less common in the United States than in the UK. There could be an inquest into how the whole Jeffrey Epstein fiasco occurred.”
Celebrity attorney Lisa Bloom, the daughter of prominent women’s rights attorney Gloria Allred and counsel for eight adjudicated Epstein victims, echoed that sentiment—with a different analogy.
“A trial is not a movie or a novel, and there are always missing pieces,” Bloom told Law&Crime in a phone interview.
“A Tremendous Amount of Baggage”
One of those missing pieces flagged by critics of the prosecution is the decision not to call Virginia Giuffre (née Roberts), whose civil lawsuit against Maxwell helped spark the accused sex trafficker’s criminal prosecution.
Though legal experts agree that Giuffre is a crucial figure in the Epstein saga, they note that her long public record of media appearances and litigation would have posed challenges for the government if called to the witness stand.
“Virginia Roberts has been absolutely courageous in coming forward and making her allegations, and I don’t know whether or not this prosecution would have happened without Virginia Roberts,” Epner said. “Virginia Roberts is a witness who would come with a tremendous amount of baggage and distraction on cross-examination. Her story has changed significantly over the years.”
Currently suing Prince Andrew inside the same courthouse, Giuffre has seen alleged discrepancies in her story highlighted in defense briefings. She is currently also involved in litigation against former Epstein attorney Alan Dershowitz. Dershowitz, who is also suing Giuffre, has repeatedly said he has never met Giuffre and called her a “serial liar.” Giuffre also claimed in a deposition that Epstein instructed her to have sex with other wealthy and powerful people, including former U.S. Senator George Mitchell, billionaire financier Glenn Dubin, former New Mexico Gov. Bill Richardson, the late MIT scientist Marvin Minsky and modeling agent Jean-Luc Brunel.
Throughout the Maxwell trial, defense attorneys have been more keen to drop of names of prominent people in Epstein’s circle than the prosecution, and experts say that this is because the government wants to avoid creating distractions to the task at hand.
“If the goal of the prosecutors is to convict Ghislaine Maxwell, without getting bogged down into side issues, calling Virginia Roberts, I think, would be counterproductive,” Epner continued.
CNN legal analyst Jennifer Rodgers, who spent more than a decade as a prosecutor inside the Southern District of New York where the Maxwell trial is taking place, noted there are other reasons the government may avoid an unnecessary “distraction.”
“Maybe there’s someone on the jury who’s a total Royal lover, right? Who loves the British Royal Family,” she noted as a hypothetical. “And so, when he talks about Prince Andrew is gonna be like, ‘Oh, he’s such a great guy.'”
That is only one reason prosecutors generally avoid invoking the names of uncharged third parties, she added.
“Are you really going to bring their names in in a way that suggests that they were criminally culpable for something that they haven’t been charged with?” she asked, rhetorically.
“The Cross-Examination Would Almost Write Itself”
Prosecutors also have avoided calling any of the people explicitly named as Epstein’s “potential co-conspirators” in his controversial 2008 plea deal, “including but not limited to Sarah Kellen, Adriana Ross, Lesley Groff, or Nadia Marcinkova.”
Epner believed that calling any of those named individuals would have been a gift for Maxwell’s defense.
“The cross-examination would almost write itself—that you have the people who were acknowledged to be co-conspirators at the time coming in and being allowed to go scot free in return for their testimony against Ghislaine Maxwell, who was not, at the time, publicly identified as a co conspirator,” he said.
Rodgers pointed out the numerous calculations that the government might consider with such witnesses, such as whether they would invoke their Fifth Amendment rights against self-incrimination, whether they would require immunity or whether they would be hostile.
“Yes, you can force someone to testify. Yes, you can put up a hostile witness and cross-examine them with other evidence. But at some point, are they going to help you more than they’re going to hurt you?” Rodgers asked.
Among the critiques of the prosecution’s case, some have questioned whether the government adequately prepared witnesses for vigorous cross-examination by Maxwell’s legal team. “Jane,” the first witness to testify under a pseudonym, appeared so disturbed by grilling by Maxwell’s lawyer Laura Menninger that she apparently insulted the attorney to her brother.
Menninger said she learned “Jane” called her an “expletive that rhymes with front.” The defense claimed that the communication violated the court’s sequestration order, and the prosecution dropped the brother as a witness, sidestepping the controversy.
Emphasizing that she did not see the testimony, Rodgers noted that prosecutors have a responsibility to prepare witnesses for any defense tactics.
“You basically can guess what’s coming with cross,” she noted, though she added there are sometimes exceptions. “Sometimes they dig up something that you didn’t know about, and you have a very unfortunate surprise moment. But usually, you can tell the way the attack is going to go.”
“Trial Are a Marathon”
All of the experts interviewed for this article agreed on one point: The case against Maxwell will not rise and fall on any single moment or line of questioning.
“Trials are a marathon,” Rodgers said. “They’re not a sprint, and this section of the trial, where witnesses are on the stand, you know, everyone wants to make it into this big, dramatic ‘Law & Order’ moment. But it’s really about the building blocks of evidence that you’re pulling out of these witnesses, so that you can assemble it for the jury all at the end and make hopefully a powerful closing argument.”
Throughout the government case, prosecutors called witnesses to authenticate pieces of evidence whose significance was not always immediately clear. One FedEx employee called by prosecutors vouched for invoices for packages sent by Epstein, but their connection to Maxwell was not immediately clear. Maxwell’s defense has argued throughout the trial that she is the “lightning rod” being blamed for Epstein’s misdeeds.
Experts note that the significance of any one piece of evidence may not be immediately apparent, but prosecutors aim to put the pieces together for the jury during summations.
“I am confident that these very well trained and very capable prosecutors have a specific reason why they want that evidence in front of the jury so that they can close on it,” Epner said.
Pointing out Assistant U.S. Attorney Maurene Comey’s assignment to the Southern District’s public corruption unit, Epner said: “People only get there after having proven themselves to be excellent prosecutors doing other things.”
In a time of intense polarization, the perceived political alliances of the attorneys involved have led some to spin conspiracy theories, including over the role of U.S. District Judge Alison Nathan, a Barack Obama appointee, in the trial. Some Donald Trump supporters have speculated darkly about Maurene Comey’s involvement in the case, as she is the daughter of ex-FBI director James Comey.
Experts slammed such “ridiculous” conjecture about Comey.
“Nobody installed Maurene Comey into the Southern District of New York so that she could be a hatchet person to sink, politically expedient cases. That is just a ridiculous assertion,” said Epner. “The people who hired Maurene Comey value their reputations, the people who surround Maurene Comey, who were trying this case with her, value their reputations. There are very few things in life that I reject out of hand. I reject that out of hand.”
As the defense case begins this week, Maxwell’s attorneys may take the case in surprising directions. They recently revealed plans to call as many as 35 witnesses, though it remains unclear how many Judge Nathan will permit to take the stand. A few on the defense witness list include the civil attorneys for Maxwell’s alleged victims, and prosecutors oppose their testimony as an intrusion upon attorney-client privilege.
As of press time, Maxwell’s defense team did not reveal whether she will testify in her own defense.
(Photos via DOJ)
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