Ghislaine Maxwell’s convictions for sex trafficking young girls to Jeffrey Epstein may be crumbling before our eyes.
Just days after celebrating the guilty verdicts, federal prosecutors took the unusual step of asking the trial judge, Alison Nathan, to investigate whether Juror 50 committed misconduct during jury selection by failing to disclose his own abuse as a child. Maxwell’s lawyers have joined that call, arguing that the evidence of juror misconduct is so clear that Judge Nathan should throw out the convictions immediately.
Judge Nathan has not yet decided whether the allegations are serious enough to require investigation. She has given the parties until Jan 19 to submit motions and briefings.
During jury deliberations, Juror 50, known only as Scotty David, confessed to his fellow jurors that he had been the victim of child sex abuse. In interviews with reporters after trial, Juror 50 says he decided to reveal his own abuse when other jurors raised doubts about the reliability of the victims’ testimony against Maxwell.
The defense had made an issue at trial about the fallibility of memory, calling one expert witness on the subject and grilling the victim “Jane” about why she now recalled Maxwell being present and even touching her during one sexual episode, when she had not mentioned these incriminating details in prior interviews with the FBI.
Juror 50 describes the jury room as going silent after he spoke out. He credits his remarks for swaying jurors and bringing them “around on . . . the memory aspect of the sexual abuse.”
A second juror who also spoke up during deliberations about personal experience with child sexual abuse agrees with Juror 50 that jurors who had doubts were moved to convict by hearing first-hand about child sexual abuse.
So far so good. Jurors are supposed to draw on their own life experiences when weighing the evidence. There would be no point to the jury system if we prevented jurors from educating one another by referencing their own different histories.
And, given what we know about the prevalence of child sexual abuse, it would not have been a jury representative of the community if none of the jurors had suffered, or knew someone who had suffered, sexual abuse as a child. In a famous daycare sexual abuse trial from the 1980s, so many of the prospective jurors acknowledged that they or someone close had suffered sexual abuse that the trial judge gave up examining them individually and simply disqualified them wholesale. This was hardly the right way to find a balanced and impartial jury.
In the Maxwell trial, jury selection began by asking some 250 prospective jurors to fill out a questionnaire. One question specifically asked whether a juror or any friend or family member had ever been the victim of sexual harassment, sexual abuse, or sexual assault. There was nothing ambiguous in the wording of the questions that might have excused a juror’s failure to disclose relevant information.
Juror 50 says he went through the questionnaire so quickly that he cannot remember how he answered those questions, though he is sure he would have answered honestly. He seems to suggest that, if he failed to disclose his abuse as a child or even checked the “no” boxes, his mistakes were inadvertent.
Answers to the questionnaires are under seal, so the public has no way of checking what his answers were.
But any juror who revealed information about abuse on the questionnaire was further examined on the subject during a process known as voir dire. They were asked whether, despite their experiences, they could put them aside, and judge the case fairly.
Juror 50 says he cannot recall whether he was asked any such questions. In a case all about the reliability of memory, the irony of Juror 50’s account of his own memory speaks for itself and probably explains why federal prosecutors felt they had no choice but to ask for an inquiry.
At any rate, the public transcript of voir dire proceedings shows that Juror 50 was not asked any questions about abuse. Judge Nathan did ask whether “other than what I have asked you, do you have any reason to think that you can’t be fair and impartial here?” Juror 50 responded, “I do not.”
Maxwell’s lawyers did not ask Juror 50 any questions during voir dire. If a defendant fails to probe a matter during voir dire when they could have, she ordinarily cannot claim that a juror should have disclosed matters they were never asked about. But here, since the jurors were asked about child abuse on the questionnaires, the defense can argue that they were entitled to rely on the completeness of those answers.
A doctrine known as harmless error means that judges do not overturn jury verdicts, if any jury would have convicted Maxwell, even if the misconduct had not occurred. But the interviews given by Juror 50 tell a story about a jury that was having difficulty reaching unanimity. Even if Juror 50 gives himself too much credit, his presence in the jury room surely made a difference. Since defense lawyers may have challenged him for cause or used one of their peremptory challenges to dismiss him from the jury pool if they had known of his child abuse, any error that led to keeping him on the jury should not be dismissed as harmless.
If Juror 50 inadvertently failed to disclose his abuse as a child, this would protect him against perjury charges. But even unintentional omissions deprived the defense of the ability to fully question him for possible bias. The issue so clearly implicates fairness during jury selection that even the prosecutors, who worked so hard for these convictions, are now the first to call them into question.
If Judge Nathan decides to hold a hearing on these matters, she will certainly want to know whether Juror 50 deliberately concealed a personal history of abuse, to stay on the jury. Such concealment would show actual bias and require the judge to grant Maxwell a new trial.
It becomes a closer call if the judge finds Juror 50’s nondisclosures were unintentional. But in a trial about the sex trafficking of minor girls, the defense’s ability to probe Juror 50 for bias was hampered by his failure to disclose his history on the questionnaire, even if accidental. No one should blame Judge Nathan if she feels she must toss out the verdicts and grant Maxwell a new trial.