As I write this post on the morning of December 22, 2021, the Ghislaine Maxwell jury continues its deliberations. Yesterday, they sent out three notes. In this article in Law & Crime News, I am extensively quoted about what can be learned from those notes. All of this should be taken with a grain of salt, because (as the late great screenwriter William Goldman said (in another context)), “Nobody knows anything.”
So, I am not imparting knowledge. I am giving more detail on my best guesses on what each of the three notes mean about the deliberations.
Note 1 - Jury requests the transcripts of the testimony of “Jane”, “Carolyn” and Annie Farmer
This note shows that the jury is focused on the most critical evidence in the case. “Jane” (pseudonym), “Carolyn” (pseudonym) and Annie Farmer each testified that they were direct victims of sexual abuse by Jeffrey Epstein. Two of them testified that Ghislaine Maxwell actually fondled their breasts during the course of the abuse by Epstein. If this testimony is believed by the jury, then they will convict Maxwell on all counts.
It appears significant that the jury did not request the testimony of “Kate” (pseudonym). “Kate” testified that she too was sexually involved with Epstein. But “Kate” was above the age of consent in the jurisdiction where the alleged sexual contact took place. In connection with “Kate”’s testimony, Judge Nathan instructed the jury that, as a matter of law, the sexual contact between Kate and Epstein/Maxwell was not illegal.
Note 2 - Jury requests the notes of the FBI’s 2007 interview of “Carolyn”
This would appear to be very good news for the defense. During the cross-examination of “Carolyn”, the defense counsel hammered on changes between the account that “Carolyn” gave to the FBI when she was initially interviewed in 2007 and the testimony that she provided in court. The notes that the FBI makes during such an interview are made on a form called a “FBI 302”. It would appear that at least one juror has focused on these changes and wants to see them with their own eyes (note, I use “them” and “their” since the gender of the juror(s) who made this request is unknown. I do not know whether this request was made by one or more than one juror).
In fact, it is a little better for the defense than that, because the note requested the “deposition” that “Carolyn” gave to the FBI in 2007. The 2007 interview was not, in fact, a “deposition” — more on that below. The fact that the jury note called it a deposition appears to show that at least one juror is according it substantial weight. According to the reporting by Adam Klasfeld (in the story linked above), lead defense counsel Bobbi Sternheim was smiling broadly after this note was read.
Although this jury note may reflect good news about the status of deliberations for Maxwell, the FBI 302s were NOT sent into the jury room for a simple reason — they were not entered into evidence during the trial. The defense would have loved to make those FBI 302s into exhibits, but the Department of Justice has designed the 302 system to make it very hard for them ever to be evidence in any case.
When I was an AUSA from 2001-04, I was informed that it was DOJ policy that witness interviews are never transcribed or recorded.
Rather, the FBI (or DEA, Secret Service, DHS, etc.) agent takes impressionistic notes during the interview. The Form 302 explicitly states that it is not a verbatim account of the interview.
The Form 302 will be provided to the defense during the course of the case. If the Form 302 includes information that arguably be exculpatory, it must be provided at the beginning of the case. If not, the Form 302 only has to be provided at the time of Jencks Act disclosure, which (depending on the judge) can either be before trial or as late as just after the witness leaves the stand on direct examination.
Because the Form 302 is not a verbatim transcript, it ordinarily cannot be placed into evidence. Rather, it can be used in two manners on cross-examination: (1) to “refresh” the witness’s recollection or (2) to confront the witness with a prior inconsistent statement.
If the witness states that the Form 302 does not “refresh” her recollection and that she stands by her current testimony, the Form 302 still cannot be placed into evidence.
In this case, the Form 302 system crafted by the DOJ may have backfired. The jurors heard defense counsel confront “Carolyn” with numerous statements that were obviously read from the Form 302. “Carolyn” denied she had made those statements, and testified that the notes must be wrong. At least one juror was so struck by this conflict that they requested to see the “deposition” transcript. Judge Nathan denied that request. So, the jurors will be left with only their memories of “Carolyn”’s testimony about whether her account shifted over the last 14 years.
Note 3 - Jury requests clarification whether testimony from Annie Farmer can be considered in support of Counts 1 & 3
Just before the jury ended deliberations yesterday, they sent out another note — this time requesting clarification whether they can consider Annie Farmer’s testimony as evidence of “conspiracy to commit a crime in counts one and three.” The prosecution was ecstatic at this note. Lead AUSA Maureen Comey urged Judge Nathan to provide a one word answer, “Yes.” Judge Nathan elaborated only slightly more, telling the jury: “The answer is yes; you may consider it.”
In order to understand why the prosecution is so encouraged by this note, it is useful to unpack what likely preceded the jury sending the note. It is highly likely that:
There was a disagreement amongst the jurors about whether the testimony from Annie Farmer could be considered as evidence in support of the Counts One & Three (both charge conspiracy to entice minors to cross state lines to commit illegal sex acts).
Both sides to this disagreement amongst the jurors were so convinced that they were right that they would not back down to arguments from the other jurors.
At this point, the note was sent to the judge. When the judge speaks to the jury, she is THE authoritative voice on the law — trusted far more than the lawyers on either side. When Judge Nathan flatly stated (correctly) that Annie Farmer’s testimony could be considered in support of the two conspiracy counts, that likely took the wind out of the sails of whichever juror(s) were insisting that it could not be. This would undercut their credibility in the jury room with regard to any arguments that they were making in favor of acquittal. Conversely, the jurors who insisted that the Annie Farmer testimony could be considered in support of the conspiracy charges would be emboldened by the endorsement of their position by Judge Nathan, including in their arguments for conviction.
Final point, the law of conspiracy is VERY pro-prosecution. In order to obtain a conviction for conspiracy, all the government must prove (beyond a reasonable doubt) is:
There was an agreement among two or more people to engage in criminal activity;
The defendant was one of the people who joined that agreement; and
That someone (who does not need to be the defendant) took at least one step towards carrying out the crime that was the subject of the agreement. The thing that is done need not be illegal itself.
Putting it in the context of this case, all that the government has to prove is:
Epstein had an agreement with at least one other person to entice underage girls to have sex with him after crossing state lines or for money;
Maxwell agreed to assist in this plan — whether or not she ever did anything to make this plan happen; and
Someone (such as Epstein) did something directed towards making this plan happen — which could be a legal thing such as flying an underage girl from NY to Florida so that she could be available to him for sexual purposes.
As I wrote at the top, when it comes to predicting what juries will do and when they will do it, “Nobody knows anything.” What will happen next? We'll see.