Ghislaine Maxwell faces high legal bar in bid to overturn sex abuse
conviction, experts say
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[December 30, 2021]
By Luc Cohen and Brendan Pierson
NEW YORK (Reuters) - British socialite
Ghislaine Maxwell is going to appeal her conviction for setting up
teenage girls to have sexual encounters with financier Jeffrey Epstein,
but experts said she will struggle to clear the high legal bar needed to
overturn the verdict.
U.S. District Judge Alison Nathan dealt several blows to the defense
during the month-long trial that ended on Wednesday, including denying a
request to have some witnesses testify anonymously and another to block
lawyers for two of the accusers from taking the stand.
Legal experts said Maxwell's lawyers are likely to cite such rulings in
any appeal of her conviction on five of six counts, including sex
trafficking, by a jury in federal court in Manhattan.
But to succeed, her lawyers would have to show that Nathan violated
federal rules of evidence or abused her discretion.
"We have already started working on the appeal, and we are confident
that she will be vindicated," Maxwell's lawyer Bobbi Sternheim told
reporters on Wednesday, without going into specific legal grounds.
Even if an appellate court agreed that Nathan made a mistake, Maxwell's
lawyers would need to show that it mattered to the outcome of the case.
A "harmless error" is not enough to overturn a conviction, according to
Bennett Gershman, a professor at Pace Law School.
"It's a very heavy burden," Gershman said, adding that federal appellate
courts tend to defer to trial judges.
An avenue of appeal for the defense might be to argue that the testimony
of Kate, one of the accusers, was improperly admitted.
While described in the indictment as a victim, Nathan instructed the
jury that Kate was actually over the age of consent at the time of her
alleged encounters with Epstein. However, Nathan said the jury could
still consider her testimony if they found it useful.
"While the court limited that testimony, and gave the jury an
appropriate limiting instruction, the defense may continue to argue that
Kate's testimony should have been excluded," said Sarah Krissoff, a
partner at the Day Pitney law firm and a former federal prosecutor.
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Jeffrey Epstein associate Ghislaine Maxwell sits as the guilty
verdict in her sex abuse trial is read in a courtroom sketch in New
York City, U.S., December 29, 2021. REUTERS/Jane Rosenberg
The defense also objected to
Nathan's instruction to the jury that they could find Maxwell guilty
if she deliberately ignored evidence of Epstein's wrongdoing, a
legal concept known as "conscious avoidance."
Maxwell's lawyers argued that prosecutors' theory of the case was
that Maxwell was an active participant, not a mere bystander, and
accused prosecutors of trying to "have it both ways."
Nathan ultimately allowed the instruction after noting that the
defense itself had sought to show during opening statements and
cross-examination of witnesses that Maxwell was unaware of Epstein's
behavior.
"Maxwell will have an uphill battle challenging the conscious
avoidance charge, as the government presented a factual basis for
such a charge," Krissoff said.
Maxwell's lawyers may also raise on appeal Nathan's ruling
preventing three defense witnesses from testifying anonymously.
Three of Maxwell's four accusers testified under pseudonyms or used
only their first names to protect their privacy as victims of sexual
abuse.
But Nathan said privacy concerns did not apply to the defense
witnesses because none of them intended to testify about sensitive
personal topics or sexual conduct.
Gershman said that any appeal would be hampered by the fact that
Maxwell's lawyers waited until near the end of the trial to ask for
anonymity.
"If they felt this was a serious concern, they should have raised
this before the trial," he said.
(Reporting by Luc Cohen and Brendan Pierson in New York; Editing by
Noeleen Walder, Alistair Bell and Grant McCool)
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