Ghislaine Maxwell May Get A New Trial Because Of Juror Misconduct

Juror Apparently Lied, Either In Voir Dire (New Trial) Or To The Press (No New Trial)

When I published my columns on Open Questions (With Answers) After Ghislaine Maxwell’s Conviction and Probably Unanswerable Questions About Ghislaine Maxwell, I did not imagine that the biggest question about Ghislaine Maxwell’s conviction would be: Will a new trial be ordered on the basis of juror misconduct? But that is where we are, after a juror, publicly identified by his first and middle names “Scotty David”, gave a series of three interviews, in which he identified himself as a victim of childhood sexual abuse, and claimed that he had not only revealed that history during jury deliberations, but also used his status as a survivor of sexual abuse to convince other jurors to believe the victim-witnesses who testified at the Ghislaine Maxwell trial.

The problem is that Scotty David was asked (under oath) during voir dire (the process of interviewing potential jurors to see if they are free from bias) if he had ever been the victim of sexual abuse, sexual assault or sexual harassment and apparently answered “no.” If you want a good overview of the Scotty David fiasco, this story by Adam Klasfeld of Law & Crime News (in which I am quoted) is very well done. I lay my thoughts on the story and where it goes from here, below.

• Judge Nathan Took Special Care To Conduct The Voir Dire In The Maxwell Trial To Avoid Biased Jurors

Voir Dire is the process by which the jurors are selected to hear a trial. Ordinarily, voir dire is conducted in open court, with questions submitted by (and often asked) by the attorneys on each side. Jurors are questioned in groups, with some individualized follow-up.

Given the press coverage and sensitive nature of the topics at issue in the Ghislaine Maxwell trial, Judge Nathan designed a special process to take care that any potentially biased jurors would be identified to the lawyers while protecting the privacy interests of potential jurors. Rather than having voir dire in open court, Judge Nathan interviewed each juror in her Chambers, with counsel for each side present. Rather than having an attorney from each side ask questions, Judge Nathan asked the questions herself. Her Honor asked the questions that were developed in a process that had input from the lawyers on both sides.

One of the questions was, “Have you . . . ever been the victim of sexual harassment, sexual abuse or sexual assault?” An affirmative answer would not have led to a witness being immediately eliminated from the jury pool, but rather led to follow up questions, as shown below:

The interviews of the potential jurors were transcribed, but those transcripts are sealed. As a result, there is currently no public record of how the jurors who sat on the case answered these questions.

• Almost Immediately After The Trial, Scotty David Gave Three Interviews Where He Claimed To Be A Survivor Of Sexual Abuse Who Swayed The Jury

In a series of three interviews that were published this week, a juror who asked to be identified as Scotty David made the following claims:

1. He, himself, had been the victim of childhood sexual abuse;

2. He had not revealed that sexual abuse to anyone until years later, when he was in high school;

3. Some members of the jury were not originally certain that the victim-witnesses who testified at the Ghislaine Maxwell trial were telling the truth, because their stories had changed over the years;

4. He stepped forward and recounted his own story of sexual abuse, hiding it for years and only later revealing the truth. He also stated that he told other jurors that some details in his story had slipped from memory over the years, but that the core memory remained fresh and intact.;

5. That the previously skeptical jurors were convinced by his heartfelt account and accepted that the victim-witnesses were telling the truth, notwithstanding the discrepancies in their stories over the years.

Scotty David also stated that he could not recall whether he was asked during voir dire whether he had been sexually abused, but that he was certain that if he had been asked, he had answered truthfully. This statement set off alarm bells in my mind. Having spent decades working with survivors of sexual assault and abuse, I know that being asked about any history of sexual abuse is often a traumatizing experience. I could not believe that Scotty David would not remember if it had been asked. Moreover, I was certain that if he had revealed that prior sexual abuse, there would have been extensive follow-up questioning. In fact, I found it hard to imagine the defense allowing Scotty David on the jury under those circumstances, whether they challenged him for cause or used a so-called “peremptory” challenge to remove him at their discretion.

• After The Scotty David Stories Were Published, The Government Requested A Court Investigation, Including Counsel For Scotty David

Yesterday afternoon, the AUSAs who prosecuted the case against Ghislaine Maxwell effectively revealed that Scotty David had not stated that he was a survivor of sexual abuse during voir dire, when they filed a letter requesting a “30 day investigation” of Scotty David’s press accounts. There would be no reason for the Government to request an “investigation” if Scotty David had stated during voir dire that he had been the victim.

The Government’s letter notified the Court of Scotty David’s three interviews, asked that the Court conduct a 30 day investigation of the circumstances, and also noted that the Court might want to inform Scotty David of his right against self-incrimination and appoint a lawyer for him. Left unsaid was the possibility that Scotty David would be prosecuted for perjury if the investigation determined he had lied at voir dire.

• The Defense Requested That Judge Nathan Immediately Vacate The Verdict And Order A New Trial

A short time later, Ghislaine Maxwell’s attorneys filed a letter requesting that Judge Nathan order a new trial without conducting any further investigation. They also requested that all other post-trial briefing schedules be suspended until the Court took action on the juror misconduct issue. The Maxwell attorneys also objected to providing Scotty David an attorney, contending that doing so would infringe on Ms. Maxwell’s right to an unbiased jury.

• Judge Nathan Ordered Briefing On The Issue And Appointed A Lawyer For Scotty David

Late on January 5, 2022, Judge Nathan Issued an order that set a briefing schedule to determine whether there should be a new trial on the basis of Scotty David’s quotes. Ms. Maxwell’s motion is due on January 19. The Government’s response is due two weeks later, on February 2. Ms. Maxwell’s reply is due one week later on February 9.

In the order, Judge Nathan also (1) set a schedule for other post-trial motions and (2) ordered that the publicly-funded attorney (under the Criminal Justice Act) represent Scotty David — unless he retained his own attorney. Shortly thereafter, Todd Spodek, a New York City-based criminal attorney entered his appearance as Scotty David’s privately retained attorney.

• What May Happen Next

Judge Nathan will have to determine what happened with Scotty David, As I see it, there are three possibilities.

1. It is possible, but highly unlikely, that Scotty David simply made an innocent error in failing to reveal that he had previously been subjected to sexual abuse. The voir dire in this case was set up to make certain that these sorts of experiences would be revealed. Judge Nathan personally spoke with each of the potential jurors before they were seated.

2. It is possible that Scotty David knowingly lied to the Court during voir dire when he denied having ever been the subject of sexual abuse. If Scotty David lied, it will lead to the inevitable inference that he lied in order to get on the jury to fulfill some agenda. In his comments to the press, Scotty David has declared that the verdict was “for all of the victims” and that Ghislaine Maxwell was “a predator” who was just as bad as Jeffrey Epstein.

   IF (huge if) Judge Nathan concludes that Scotty David lied to get on the jury, she almost certainly would grant Ghislaine Maxwell’s motion for a new trial. The guilty verdict would be wiped away. A new trial likely would not happen for months. At a retrial, the defense would have the advantages of (a) being able to prepare for the anticipated testimony of the victim-witnesses and corroborating witnesses, and (b) being able to cross-examine on any deviations between their testimony at the first trial and the second trial. It is also possible that some witnesses who testified at the first trial would not be willing to go through that ordeal again.

   IN ADDITION, if Judge Nathan concludes that Scotty David lied to the Court and therefore voids the conviction and orders a new trial, it is extremely likely that she would recommend to the US Attorney’s Office that Scotty David be prosecuted for perjury. Even if she does not make such a recommendation, the US Attorney independently could decide to prosecute Scotty David.

3. It is possible that Judge Nathan would conclude that Scotty David lied to the press when he claimed to have been the victim of sexual abuse as a child. It is possible that Scotty David, himself, will back away from his account of having been sexually abused as a trial. If that was a lie, then his statements during voir dire would be the truth - and he would not be subject to prosecution for perjury. It would also mean that the conviction of Ghislaine Maxwell would stand and there would not be a new trial.

   
   How will all of this play out? We’ll see.