The case against Jeffrey Epstein proxy Ghislaine Maxwell is now in the hands of the jury, with the two sides having summed up their positions.
“It is crystal clear that Maxwell knew about and was deeply involved in Epstein’s sexual abuse of children,” Alison Moe, an assistant U.S. attorney, told the jury in a closing argument that sought to tie together the government’s evidence, which was presented over 10 days. “Maxwell was key to the whole operation,” she said.
Ms. Maxwell’s lawyer, Laura Menninger, acknowledged in her summation on Monday that the government had “certainly proved” that Mr. Epstein was a “master manipulator” who abused his wealth and privilege. But, she said, “we are not here to defend Jeffrey Epstein.”
“You need to keep your eye on the thing that the government hasn’t — how these stories have changed dramatically over time,” she said.
Was Maxwell one of Jeffrey Epstein’s “dupes” or his facilitator in crime? Unlike most trials, the defense put on a case, and sought to have certain witnesses testify pseudonymously. This followed the prosecution’s presentation of five witnesses under pseudonyms, which the court allowed.
First, the Court has a statutory duty to protect an alleged crime victim’s “right to be treated with fairness and with respect for the victim’s dignity and privacy.” 18 U.S.C. § 3771. Because of the “sensitive and inflammatory nature of the conduct alleged” the Court found that pseudonyms were necessary to protect that right.
Second, if alleged victims of abuse were subject to publicity, harassment, and embarrassment, “other alleged victims of sex crimes may be deterred from coming forward” to report abuse. The Court emphasized that the Government’s proposal is “quite common” among courts in this circuit, citing six such cases. As a consequence of protecting alleged victims, the Court further permitted pseudonyms for several witnesses that were not alleged victims themselves “because the disclosure of their identities would necessarily reveal the identities of the alleged victims.”
When it came to the defense, SDNY Judge Alison Nathan rejected the application.
First, the Defense argues that anonymity is necessary to protect its witnesses from scrutiny and harassment because of the significant publicity this case has garnered. But these generalized concerns are present in every high-profile criminal case. They do not present the rare circumstances that prior courts have found justify the use of pseudonyms. Further, the alleged victims that received pseudonyms during the Government’s case have a statutory right to have their “dignity and privacy” protected. The Defense’s witnesses have no similar right.
While it’s true that the same dynamics occur in every high profile case, it’s curious that both the particulars of this case, and the particulars of the climate, were ignored. Even more curious was Judge Nathan’s assertion that the defense’s witnesses have no right to “dignity and privacy.” She’s right that the accusers now enjoy statutory protection, but do defense witnesses put their lives at risk with a shrug of the court for lack of a statutory right when the defense has a constitutional right to put on a defense?
Second, and relatedly, the Defense argues that without pseudonyms, its witnesses may refuse to testify, implicating Ms. Maxwell’s right to present a defense. The Court notes the late-breaking nature of the Defense’s request, which was made not pre-trial, as was the Government’s request for the use of pseudonyms, but instead two days after the Government rested its case. The Defense could and should have anticipated potential witnesses’ concerns. If the Defense anticipated calling a witness who refuses to testify, the Defense would have the same tools at its disposal as does the Government to compel that witness’s attendance at trial. The Defense could have, for example, subpoenaed a witness under Rule 17. If the witness resides abroad, the Defense could have sought a letter rogatory …, which is a mechanism that the Second Circuit has repeatedly emphasized. These mechanisms ensure that pseudonyms are not necessary to secure a reluctant witness’s testimony and the Court therefore rejects this basis for permitting pseudonyms.
It appears that Judge Nathan lacks a firm (or perhaps any?) understanding of how a defense in a criminal case happens, and the problems inherent in a case of this nature. The judge rejected additional arguments contrasting the prosecution’s use of pseudonymous witnesses as well.
The Sixth Amendment protects the defendant’s right to present a defense. The arguments presented, regardless of the court’s allowing the prosecution to conceal the identities of its witnesses from the public, were certainly legitimate concerns. But the judge held the countervailing right of the press and public to know the identities of witnesses.
That presumption of identification is based, in part, on the “firmly established” principle that “the press and general public have a constitutional right of access to criminal trials . . . embodied in the First Amendment.”
Whose constitutional rights come first, the defendant’s right to present her defense or the press and public’s right to be titillated by the identities of witnesses in a salacious prosecution such that the witnesses for the defense might refuse to testify or cooperate lest then end up with a pig’s head on their stoop or worse?
*Tuesday Talk rules apply.
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This judge has pretty much been going for wokey points right along. The important thing is to get the witch off to the stake and burned. That can go a lot faster without a bunch of defense witnesses clogging up the calendar.
I held back from making the first comment for fear of saying something unworthy, but here you are. You didn’t discuss anonymity at all. Why not? You ever heard of defense witnesses being allowed to testify anonymously under any circumstances? What makes this case special?
That “victims” have different rights than anyone else is itself a travesty, but that the conflict of “rights” is between the press and public “right” to watch a salacious trial and the defendant’s constitutional right to a defense takes the cake.
If there is any legitimate basis for the defense’s request, her 6th A rights must prevail over the right to a public trial (which, I note, is also a defendant’s right and not some free-floating public right). How the hell did the defendant end up being the person in the courtroom whose rights no longer matter? That, of course, is a rhetorical question.
This has been boring so far, so let’s try to liven it up. What do you mean when you say “legitimate basis”?
Do I have to actually receive death threats to testify for the defense anonymously or is my fear of death threats enough? Remember that I’m a coward and am terrified of most everything whether it’s real or not. Even where there’s nothing, my imagination will create something. Also, I’m extremely sensitive about how others see me. And paranoid. And generally deluded. But damnit if I didn’t see something that’s important to the defense. Can I be excused from having to face the public please, Judge Miles? There’s like 100 articles about this every day and I don’t want my delicate face in any of them.
Fair enough. Here’s some juice: So a subjectively and objectively reasonable basis for fear of retaliation or reputational harm. Prove me wrong, kid!
To me, this asymmetry in allowing anonymous P testimony is just one more instance where the “ compulsory process for obtaining witnesses” available to D is just not as good as the one’s enjoyed by the prosecution.
(Another example: the state can offer immunity to induce testimony whereas defense cannot—even if their “subpoena power” is identical. (I am pretty sure that if Morries Lester Hall had anything nasty to say about Derek Chauvin he would have been granted immunity, but Chauvin was unable to make a similar offer.))
Holy shit, you made a good point.
Did someone hack your computer?
In addition to highlighting a fundamental lopsidedness in terms of a defendant’s constitutional rights versus the statutory parameters of criminal procedure, the court’s ruling appears to assume that alleged victims (that is, witnesses called by P) are not similarly situated to those called by D. That is, because the former says “J’accuse!” and the later says “Didn’t happen,” they are in different positions in terms of privacy and dignity. Of course, given the allegations surrounding Epstein and Maxwell, in order for anyone to accuse or deny the occurrence of an event, that person (regardless of which “side” they are on) would have had to have been in a position to perceive the occurrence or non-occurrence of the alleged event.
If this is different sides of the same coin, then granting Doe status for P’s witnesses (because it is authorized by statute) while denying the same to D (because it is not statutorily authorized and because open proceedings are the norm) is flawed.
Was Maxwell denied a defense? I suppose we’ll have to wait and see if a silver hammer goes bang bang on her head. Otherwise, I can only speculate.
By statute, putative “victims” (forget that it puts the cart ahead of the horse) are given special privileges. Defense witnesses are not. But the argument proffered and rejected raises significant issues, and the rationale for denying pseudonimity, the press and public right to know, was historically the right of the defendant to an open trial, not for the benefit of the public but so the defendant wouldn’t be convicted in a secret star chamber.
Kinda makes the defendant’s constitutional right loom a bit larger than either the statutory protection of “victims” and the dubious public right to salacious information. This becomes even more clear when the right to a public trial gives way to the practical concern for undercover officers. It doesn’t take much to close a courtroom, and if it has any potential to impair the right to a defense, that should be enough to justify the application.
This judge seems not to understand the concept of a fair trial. She has stacked the deck against the defendant. One would think that in a high-profile case, the judge would be more careful. Is she ignorant? Incompetent? Careless? Biased? I find it all very puzzling. I’ve been a criminal defense lawyer for over half a century, and I find myself gasping at this charade.
Maxwell found guilty of 5 out of 6 counts.
Before the trial I did not know if she was guilty or innocent. After this terrible trial, I still do not know. Will the concept of guilty until PROVEN innocent be the new guiding light of the justice system? Is judicial political bias the new norm? When a Democrat judge was impartial, Kyle Rittenhouse walked, as he should have. He may have acted stupidly, but he committed no crime. It’s certainly not clear that Maxwell committed any crime either and the different treatment of the prosecution versus the defense in this case casts a pall upon the entire judicial system. I look forward to the appeal.