>>Benjamin Weiser and Rebecca Davis O’Brien, The New York Times
Published: 2021-11-29 21:29:45 BdST
For a while, one of the most notorious faces on display, in a corridor near a room where prospective jurors gather, was that of Jeffrey Epstein, the disgraced financier and sex offender.
But at a recent hearing in the case of Ghislaine Maxwell, whose trial on charges she helped Epstein recruit and ultimately abuse young girls begin Monday, the government and the defence each asked that Epstein’s picture be removed from the wall.
Judge Alison Nathan agreed to have it done. But Epstein, who died by suicide more than two years ago, will not be so easily erased from the trial of Maxwell, his longtime partner.
“The shadow of Epstein is going to loom large here,” said Moira Penza, a former federal prosecutor in Brooklyn. “The case is obviously going to be about Maxwell, but he’s going to be right at the centre of it as well.”
Maxwell, 59, the daughter of a British media mogul and a longtime fixture on New York’s social scene, had been linked to Epstein as a girlfriend and later helped him manage his homes and his social relationships.
Her lawyers now face the challenge of trying to disentangle her from the allegations against Epstein — even perhaps portraying her as his victim, legal experts said. But the government will also have to tread carefully before the jury.
“The prosecutors are certainly going to want to paint a picture of Epstein as an evil man, because that’s necessary for the jurors to understand and be outraged by her role in the scheme,” said Arlo Devlin-Brown, a former top federal corruption prosecutor in Manhattan. "But they really have to walk a fine line between setting that stage and going overboard — making the trial too much about Epstein and his conduct, and not enough about Maxwell.”
Epstein, 66, was arrested July 6, 2019, and charged with recruiting dozens of girls to engage in sex acts with him at his mansion in Manhattan and his estate in Palm Beach, Florida. He paid them hundreds of dollars in cash for each encounter, a federal indictment said.
Just over a month later, Epstein hanged himself in his jail cell while awaiting trial, the medical examiner ruled.
In announcing charges against Maxwell in July 2020, prosecutors said she had been a critical facilitator of Epstein’s conduct.
“Maxwell enticed minor girls, got them to trust her and then delivered them into the trap that she and Jeffrey Epstein had set,” Audrey Strauss, then the acting Manhattan US attorney, said at the time.
Maxwell’s lawyer did not respond to a request for comment on her client’s behalf, but in a recent hearing, Maxwell told Nathan, “I have not committed any crime.”
A federal indictment charged Maxwell had groomed girls to lower their defences, befriending them by asking about their lives, their schools and families, and taking them to the movies and shopping. The term “grooming” describes a strategy that predators use to try to break down a potential victim’s resistance to abusive conduct.
Having developed a rapport with a victim, Maxwell would try to normalize sexual abuse by discussing sexual topics, undressing in front of a victim or being present for sex acts involving the girl and Epstein, the indictment said.
It said that her presence “helped put the victims at ease because an adult woman was present.”
Maxwell’s lawyers have not publicly discussed their trial strategy, but shortly after her arrest, when she was unsuccessfully seeking bail, they wrote to Nathan: “Sometimes, the simplest point is the most critical one: Ghislaine Maxwell is not Jeffrey Epstein.”
Rachel Barkow, a professor of criminal law at New York University School of Law, said it will be a challenge for Maxwell “to try to somehow separate herself from him, and make the case that she’s a different person and just because she has a relationship with him does not mean guilt by association.”
Penza, who led the prosecuting team that won the 2019 racketeering conviction of Keith Raniere, the Nxivm sex cult leader, said Maxwell’s lawyers might try to suggest that she was a victim of Epstein's, blaming him without fear that he could rebut the assertion — a kind of “empty chair” defence.
“You couldn’t have a bigger empty chair than in this case,” Penza said. “Everyone in the room is going to be navigating the fact that Epstein is not on trial and Maxwell is.”
Devlin-Brown added that “the defence will need to be deft in their portrayal of Epstein.” If her lawyers want to portray Maxwell as a dupe, he said, they may focus on Epstein’s “manipulative traits, his ability to charm and fool high-profile individuals from the worlds of politics, academia and commerce.”
Prosecutors have already pushed back on a potential Maxwell-as-victim defence, calling such an argument “baseless” and asking that her lawyers be precluded from making it without first showing the judge how they would prove it.
“The government’s yearslong investigation has not developed any evidence that the defendant was victimized in any way by Jeffrey Epstein,” the government recently wrote in little-noticed court papers.
The prosecutors said that even before they presented Maxwell’s case before the grand jury, they listened as her defence lawyers made various arguments trying to dissuade them from charging her.
“At no time has the defence represented to the government that Mr Epstein had victimized Ms Maxwell in any manner,” the prosecutors wrote.
And when prosecutors more recently asked Maxwell’s lawyers whether they planned to offer such evidence at trial, “defence counsel declined to answer,” the government said.
In a tart response to the government’s assertions, Maxwell’s lawyers suggested that there was indeed evidence for such an argument.
“The government should reread the many thousands of pages of witness statements,” the defence wrote, “before asserting that it would be ‘baseless’ to claim that Ms Maxwell was a victim of Mr Epstein.”
The defence added: “The government would like nothing better than for the court to require defence counsel to have their hands tied behind their back and their mouths duct-taped."
Whatever the defence’s strategy, Maxwell’s lawyers also will be fighting a perception that she is Epstein’s proxy — that her trial will be the one he never had.
Epstein first avoided federal sex-trafficking charges in 2007 when he negotiated a secret deal with the U.S. attorney’s office in Miami to plead guilty to lesser state charges of soliciting a minor for prostitution. He avoided another trial when he died by suicide.
“The fact I will never have a chance to face my predator in court eats away at my soul,” one of Epstein’s accusers, Jennifer Araoz, said in a court hearing shortly after Epstein's death. She had accused Epstein of raping her when she was a 15-year-old performing arts high school student in New York.
The judge in Epstein’s case, Richard Berman, had called the hearing after prosecutors asked him to dismiss Epstein’s indictment because of his death. Berman did so, but only after giving nearly two dozen of Epstein’s accusers a chance to be heard in court.
“Please finish what you have started,” another of Epstein’s accusers, Sarah Ransome, said at the hearing, thanking prosecutors for “pursuing justice on behalf of the victims.”
As for the picture of Epstein, who was sketched seated between his lawyers at a 2019 bail hearing, it was taken down as the parties requested.
“My sense is both sides want to ensure there’s going to be a fair trial,” said Deirdre von Dornum, head of the federal defenders office in Brooklyn.
She said prosecutors would not want the defence to later be able to seek a mistrial on grounds a juror was influenced by the Epstein sketch. And Maxwell’s attorneys would not want a juror thinking, “He’s so notorious that he’s hanging on the wall.”
“It’ll remind the jurors,” she said, “that his trial never happened and that he was never brought to justice, so someone still needs to be.”
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