Analysis-No guarantee of new Maxwell trial after juror's revelations, experts say

[January 07, 2022]  By Luc Cohen and Karen Freifeld

NEW YORK (Reuters) - The possible failure of a juror in Ghislaine Maxwell's trial to disclose that he was a victim of sexual abuse may not be enough to overturn the British socialite's sex trafficking conviction and warrant a new trial, legal experts said on Thursday.

Maxwell, 60, was convicted last week on sex trafficking and other charges for recruiting teenage girls to have sexual encounters with Jeffrey Epstein. Her lawyers asked for a new trial after the juror told Reuters and other news outlets that he shared his experience of sexual abuse during deliberations.

It was unclear whether the juror, who asked to be identified by his first and middle names, Scotty David, revealed that experience during pre-trial vetting.

But not all instances of jurors failing to disclose information were significant enough to merit a new trial, experts said, noting that many instances where verdicts were overturned involved jurors who deliberately omitted information to try to get on the panel.

"The system does not favor overturning verdicts. We value finality," said Laurie Levenson, a professor at Loyola Law School in Los Angeles, adding that the judge has "broad discretion" in this case.

In U.S. court cases, prospective jurors who the judge decides are biased or have a conflict of interest can be dismissed for cause. After that, both the defense and prosecutors can each dismiss a certain number of jurors for no particular reason, known as a peremptory strike.
 

Prospective jurors in the Maxwell case were asked during a pre-trial questionnaire whether they had ever been sexually abused. Those who answered "yes" were later questioned by U.S. District Judge Alison Nathan about whether they could be impartial, court records show.

Scotty David told Reuters on Tuesday he "flew through" the form. He said he did not remember a question that asked if he was ever a victim of sexual abuse, but would have answered honestly. He told Reuters he was not asked about any personal experience with sex abuse in follow-up questioning.

In U.S. federal court cases, prospective jurors who the judge decides are biased or have a conflict of interest can be dismissed for cause. After that, both the defense and prosecutors can each dismiss a certain number of jurors for no particular reason, known as a peremptory strike.

Scotty David did not reply to a request for comment on Thursday. Todd Spodek, a lawyer who made appearance in the case on behalf of an unnamed juror after the defense's request for a new trial, also did not respond to a request for comment.

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/File Photo

'SHOULD HAVE BEEN REVEALED'

Some experts said they expected Nathan to examine whether Scotty David could still have been impartial despite his experience with abuse. In deliberations, jurors are allowed to relay their personal experiences so long as they do not use it in place of evidence.

But they said Nathan might be limited in asking what happened in the jury room since judges consider the secrecy of deliberations sacrosanct.

"Just because you're a victim of sexual assault does not mean you can't sit on a jury. Just because you lie about that does not mean she was denied a fair trial," said Zachary Margulis-Ohnuma, principal attorney at ZMO Law PLLC.

For example, in 2016, a New York state judge declined to overturn the manslaughter conviction of a New York City police officer Peter Liang despite a juror's failure to disclose during jury selection that his estranged father had been convicted of manslaughter.

The judge said the defense had not shown the juror's actions violated Liang's right to a fair trial.

There is some precedent for new trials being ordered when jurors are dishonest. In 2012, the late U.S. District Judge William Pauley ordered a new trial for defendants convicted of running a tax shelter scheme, following revelations that a juror in that case had lied during pre-trial screening.

The juror said she only had a bachelor's degree and was a "stay-at-home wife" when she had actually graduated from law school. She later admitted to lying to make herself more "marketable" as a juror.

Pauley called the juror "a pathological liar" in his ruling and said that if the juror had answered honestly, he would not have let her serve.

The Maxwell case would likely have a different outcome, said Pace University law professor Bennett Gershman, who has written about jury misconduct. He noted that the jury acquitted Maxwell on one of the counts, suggesting they were responsible in their deliberations.

"It's something that should have been revealed, but doesn't seem to have compromised the verdict," he said.

(Reporting by Luc Cohen and Karen Freifeld in New York; Editing by Noeleen Walder)

[© 2022 Thomson Reuters. All rights reserved.]  This material may not be published, broadcast, rewritten or redistributed.  Thompson Reuters is solely responsible for this content.