When Ghislaine Maxwell was convicted last December of procuring minor teenagers for the disgraced financier Jeffrey Epstein to sexually abuse, their victims expressed joy and relief that long-delayed justice had finally been served.
Less than one week later, however, a juror’s comments revealed that he apparently did not disclose childhood sexual abuse during jury selection – sparking a chain of events that could now potentially undermine the trial’s outcome.
Following prosecution and defense requests to investigate the juror Scotty David’s comments – and Maxwell’s calls for a retrial – Judge Alison Nathan said that she will question him under oath on Tuesday.
While David said he would invoke his fifth amendment right against self-incrimination, prosecutors are seeking immunity for him which, if obtained, would compel him to testify.
“To be clear, the potential impropriety is not that someone with a history of sexual abuse may have served on the jury,” Judge Nathan said in a 24 February order. “Rather, it is the potential failure to respond truthfully to questions during the jury selection process that asked for that material information so that any potential bias could be explored.”
Veteran attorneys told the Guardian that there is a high bar for overturning a jury verdict. While unlikely, it is possible that Maxwell could get a new trial: a prospect that will be stunning for many involved in the long hunt for the former British socialite and those who have followed the Epstein saga for years.
With Epstein having killed himself in a New York jail cell, Maxwell’s trial and guilty verdict was seen as a form of justice for the victims of the sex trafficking ring, especially given the elite and powerful status of so many in Epstein’s social circle.
But the spat over David has thrown a spanner in the works and seemingly thrown Maxwell an unlikely potential lifeline.
David’s explanation for why he marked the no box on a screening questionnaire that asked: “Have you or a friend ever been the victim of sexual harassment, sexual abuse, or sexual assault?” will be key to the outcome of the hearing.
“Depending upon how this hearing goes, it could absolutely throw the verdict into disarray,” said David S Weinstein, a partner at Jones Walker who previously worked as a federal prosecutor. “It doesn’t mean it absolutely will, but there is a greater likelihood than before, when we didn’t know as many facts.”
A key question is whether David’s seeming omission deprived Maxwell of an opportunity to select jurors in her case. Prosecutors and defense attorneys are able to challenge potential panelists during jury selection, with possible bias being a key factor.
Maxwell’s attorneys have contended they would have challenged David had they known his history – and that he would have been excused. “If it turns out that he knowingly and intentionally misled the lawyers on both sides with his answers, then [Nathan] can decide if that, in and of itself, deprived the defendant of a fair trial by denying [Maxwell] the opportunity to select jurors,” Weinstein said.
Ron Kuby, a criminal defense attorney of nearly four decades, said: “This claim of juror misconduct is a substantial claim – given even more substance based on reporting that the juror will invoke his fifth amendment right against self-incrimination.”
“I’ve never seen a juror take the fifth,” Kuby said.
Kuby said that claims of juror misconduct – such as claims that they were bullied into rendering a certain verdict, or allegations that they read coverage of the case – are not uncommon after trials. But, “those claims don’t tend to change the outcome because that conduct is immaterial.”
However, David claimed to have been sexually abused as a child, which is important, given that Maxwell’s trial was about sexual abuse of teenage girls. “This goes, in many ways, to the heart of the case,” Kuby said of the controversy surrounding these developments.
Moira Penza, a partner at Wilkinson Stekloff who, while working as an assistant US attorney in Brooklyn, successfully prosecuted the Nxivm sex cult case, said judges rarely overturn verdicts.
Penza said this was an “unusual situation”, but didn’t want to make predictions about what might unfold, especially given the complexity of the events. “We’ve already had Judge Nathan decide that an evidentiary hearing was warranted so really, at this point, we wait and see what happens at Tuesday’s hearing,” Penza said.
“If juror No 50 is granted immunity, and is therefore compelled to testify and is unable to assert the fifth amendment, what we’ll see is an inquiry from Judge Nathan as to how this juror questionnaire was filled out with a negative response to the sexual abuse question,” she said.
“I think it’s really important that Judge Nathan has already stated that just an affirmative answer to the sexual abuse question would not, in and of itself, disqualify juror No 50 from sitting on the jury.
“The question really becomes: was there an intentional misrepresentation that would have allowed for a cause challenge by the defense to keep him off the jury?”
David’s attorney did not immediately respond to a request for comment.
Maxwell was found guilty on sex trafficking and other related charges for facilitating Epstein’s sexual abuse of minor teens, some just 14 years old. Maxwell has maintained her innocence.
Epstein, a convicted sex offender who once counted Prince Andrew among his rich and powerful associates, was arrested in July 2019 for sex trafficking minor teens. He killed himself about one month later in a Manhattan federal jail, while awaiting his trial.
