Jurors weighing the fate of Ghislaine Maxwell late on Tuesday, on their fifth day of deliberating, told the judge they were making progress — and then asked to go home early.
During their deliberations, the 12 jurors have sent a series of intriguing, and confusing, smoke signals in notes passed to the judge. The length of their debate suggests the government’s case has not been overwhelming, although there are potentially worrying signs for the defence as well.
A more immediate cause for concern has been the threat of Covid-19, as a fierce wave of Omicron sweeps across New York City. The longer the jurors debate, the greater the risk that one or more will become infected, which could potentially force a mistrial.
Judge Alison Nathan acknowledged that risk when she ordered jurors on Tuesday to sit all week, and even through the weekend, until they had reached a verdict, because of the “astronomical spike” in Covid cases.
On Wednesday, the jury sent a note asking whether they would have to deliberate on Friday, which is New Year’s Eve, and New Year’s Day on Saturday — to which the judge replied they would, barring any “substantial hardship” it could pose.
“Time is the friend of the defence, especially in this case,” said Neama Rahmani, a former federal prosecutor who now practises at West Coast Trial Lawyers in Los Angeles. He took it as a worrying sign for prosecutors when the jury failed to reach a verdict before the Christmas holiday.
“The longer this goes on, the worse this is for the prosecution and the greater the risk that one juror is entrenched and this jury is going to be hung,” Rahmani said.
Even so, he did not expect Maxwell, 60, to walk free, which would require the jury to acquit her on all six charges of allegedly grooming underage women for her former companion, Jeffrey Epstein, to sexually abuse.
Epstein died by suicide in a New York City jail cell in 2019, a month after his arrest on sex trafficking charges. Maxwell, a British socialite and the daughter of late press baron and embezzler, Robert Maxwell, was arrested the following year. She has denied the charges, and her lawyers have argued that she has been made a scapegoat for his misdeeds.
Jurors, after returning from a break for the Christmas holiday, asked on Monday morning for a whiteboard and highlighter pens, suggesting they were studiously sorting through a complicated case that turns on events from more than 20 years ago.
They have also asked for the testimony of one of Epstein’s pilots, whose records showed he had flown one of his boss’s then-underage accusers on at least four occasions, as well as for the definition of the word “enticement.”
While it is impossible to know where they stand, there was a sense of foreboding for Maxwell a week ago when jurors asked if they could consider the testimony of one witness, Annie Farmer.
Farmer had testified about a trip to Epstein’s ranch in New Mexico when she was 16, where Maxwell, she said, encouraged her to have a nude massage and then groped the top of her breasts. Now a licensed psychologist with an Ivy League education, Farmer was a seemingly unimpeachable witness whose testimony was supported by a former high school boyfriend and her mother.
“The answer is yes, you may consider it,” the judge said, over opposition from Maxwell’s lawyers.
Other government witnesses have alleged abuse over a period of years, and while the broad strokes were similar, some inconsistencies could offer a foothold for any juror disinclined to believe them.
One witness, identified as Carolyn, recalled accompanying an older friend to Epstein’s Palm Beach mansion when she was 14 to massage a wealthy man for money. She met a woman there she came to know as “Maxwell”, Carolyn said, who helped arrange some of the 100 or so such visits over the next two years in which Epstein would abuse her.
But on cross examination, Carolyn admitted that she had not mentioned Maxwell to the FBI when they first spoke to her about Epstein in 2007. The next year, the defence noted, she filed a civil lawsuit against Epstein and Sarah Kellen, one of his assistants — but not Maxwell.
Carolyn is the only witness whose testimony supports a charge in the indictment of sex trafficking of minors, which carries the stiffest sentence: up to 40 years in prison.
Maxwell’s lawyers and family appeared heartened when jurors asked on the second day of deliberations to review a copy of Carolyn’s FBI deposition, although the judge declined since it had not been admitted into evidence.
Another government witness, identified as Jane, also testified about alleged abuse by Epstein and Maxwell that began when she was 14, and her family was in dire straits following her father’s death from cancer.
On cross examination, Maxwell’s lawyer, Laura Menninger, noted that Jane had waited 20 years to report her claim to law enforcement.
Jane told the jury Epstein and Maxwell led her to his bedroom when she was 14, and removed their clothes before prodding her to do so. But after a December 2019 meeting, the FBI wrote that Jane did not have a “specific memory” of the first sexualised massage at which Maxwell was present. “You have come up with that memory in the last two years?” Menninger asked.
On Wednesday, jurors asked the judge to review testimony from five witnesses, including an expert in “false memories” who testified on behalf of the defence.
The defence have also repeatedly cited the money the women have received from an Epstein victims’ compensation fund, claiming that they have altered their accounts over the years in order to help the government and thereby strengthen their own claims.
“Historically, in sex abuse cases the government has to produce an overwhelming number of victims,” Rahmani said of the prosecutors’ challenge. “These were the four best victims the government had.”