A Former Prosecutor’s Take on Ghislaine Maxwell Trial

COMMENTARY Crime and Justice

A Former Prosecutor’s Take on Ghislaine Maxwell Trial

Dec 16th, 2021 15 min read

Commentary By

Zack Smith @tzsmith

Legal Fellow, Meese Center

Christian Mysliwiec

Commentary Editor, The Daily Signal

Ghislaine Maxwell, seen here with Jeffrey Epstein in this 2005 photo, is charged with recruiting and grooming four underaged girls to be abused by Epstein. Joe Schildhorn / Patrick McMullan / Getty Images

Key Takeaways

The trial of Ghislaine Maxwell—the right-hand woman of deceased financier and convicted pedophile Jeffrey Epstein—continues this week

The allegations are that Maxwell groomed these very young girls, preyed on their vulnerabilities, tried to befriend them in some ways, normalize what was happening.

I suspect you’ll try to see her attorneys drawing a distinction between her and Jeffrey Epstein, making clear the point she is not Jeffrey Epstein.

The trial of Ghislaine Maxwell—the right-hand woman of deceased financier and convicted pedophile Jeffrey Epstein—continues this week, with Maxwell’s defense attorneys expected to make their case Thursday. Maxwell is charged with recruiting and grooming four underage girls to be abused by Epstein.

To better understand the details and nuance of this disturbing case, The Daily Signal spoke with Zack Smith, a former assistant U.S. attorney in the Northern District of Florida who now is a legal fellow at The Heritage Foundation. (The Daily Signal is Heritage’s news outlet.)

Christian Mysliwiec: You’ve been watching this case closely. Unlike the [Kyle] Rittenhouse case there have been no cameras in the courtroom.

Zack Smith: Right.

Mysliwiec: But that’s standard for a federal trial.

Smith: That’s absolutely right. When this case initially began—the trial began 10 days ago or so, about two weeks ago—there were some stories online the judge had issued a media gag order, that no press were being allowed in. That’s just not true. There are internal closed circuit cameras so that folks can watch from the courthouse. Typically pool reporters are allowed in high profile federal criminal trials, and that’s exactly what is happening here. Typically when you see other televised trials, like the Rittenhouse trial, that’s because the courts in a particular state allow those proceedings to be televised.

Mysliwiec: Understood. We’ve all had to rely really on news reports, the media, for details about this trial. But you’ve been watching it closely, so tell me your impressions about the trial so far.

Smith: Well, I think certainly Jeffrey Epstein is looming large over the proceedings. There is some sense that in some ways Ghislaine Maxwell is standing in for Epstein. And I think that’s really what her lawyers, if you listen to the questions they’ve asked when they’ve cross-examined the prosecution’s witnesses, they’ve tried to make that point that she is not Jeffrey Epstein, and that she—according to her and her attorneys—was not involved in any of his horrifying activities.

Mysliwiec: Trying to pin her as a scapegoat.

Smith: Right. That’s exactly right. And so you even heard some of that when she was talking about the conditions she’s being held in. She was held without bail. The judge said that she was a flight risk, and so that he would not release her on bail. And so her and her attorneys have filed several complaints about the frequent checks on her in prison, it disrupts her sleep schedule, saying that essentially they are taking extra precautions with her because of what happened with Jeffrey Epstein.

Mysliwiec: Right, so as you said, Epstein looms large in this case. There are so many bizarre and disturbing aspects of this case, and a lot of it is related to Epstein himself. He was arrested for sex abuse of a minor in 2006, pleaded guilty in 2008, had an extremely light sentence, arrested again in 2019 on sex trafficking charges, apparently committed suicide in prison. In light of all this, do you have any faith that the justice system will deal fairly with Maxwell?

Smith: Well, I think so. Look, she has very good attorneys. They’ve clearly done their homework. If you listen to the cross-examination, again, to some of the witnesses, they’re clearly trying to poke holes in some of the stories that these witnesses are putting forward in trial. And not necessarily calling them liars, but trying to maybe attribute certain financial motives to some of the witnesses, trying to say that these events happened 20, 25 years ago in some cases, memories fade, pointing out inconsistencies with some of the prior statements they earlier gave to law enforcement officials.

And so I think I am hopeful that justice will be served, and that certainly this seems to be how our system of justice works. There’s an adversarial process where the prosecutors present their case. They have the burden to prove the charges beyond a reasonable doubt. And Maxwell, who’s represented by very capable defense attorneys, are representing her interests very capably.

Mysliwiec: OK, so there’s very little reason to assume that she will be paying for what Jeffrey Epstein was convicted of?

Smith: I think if she’s ultimately, convicted that’s certainly what she will say: is that she’s essentially atoning for Jeffrey Epstein’s alleged sins in many of these cases. But, look, there are six counts that she was indicted on, four of those related to essentially these child sex trafficking-related charges, and two were perjury charges.

Basically, there’s an allegation that she lied in a civil deposition, which is a mechanism where someone goes under oath and gives testimony in a civil lawsuit. That she lied in a deposition in a civil case, and so federal prosecutors charged her with perjury.

Now, what’s interested here is the judge in this case basically said, “We’re not going to try the perjury charges with these other sex trafficking-related charges.” So, even if Maxwell is acquitted at this trial of these sex trafficking charges, she presumably would still have to face the two perjury charges that she was also indicted on.

Mysliwiec: I see. And so going back to the sex trafficking charges, we had the four victims, the four accusers who claim to have been abused and also groomed by Maxwell. They testified, they gave their testimony. Were you able to track what they were saying and did it seem … What were your impressions of their testimony?

Smith: Yeah, so it seemed to be a pretty consistent story. Essentially it seems like where the prosecutors are going with this is they’re essentially painting Maxwell as Jeffrey Epstein’s right-hand woman, if you will. The exact nature and extent of their relationship, listening to the testimony, seems to be somewhat ambiguous. I think at one point they may have been romantically linked, at one point it may have been more of an employee-employer relationship. I think Maxwell and her attorneys certainly are trying to paint it more of that employee-employer relationship.

But essentially the allegations are that Epstein and Maxwell groomed these very young girls, preyed on their vulnerabilities, that Maxwell tried to befriend them in some ways, normalize what was happening. And it’s very sad details that come out in trial. Still many years later these victims are clearly disturbed. There were tears shed on the stand by these victims.

And so, if these allegations, if the jury does find the testimony credible, are proved, they’re certainly very, very troubling allegations that I would think deserve very harsh punishment.

Mysliwiec: And the onus is on the prosecution to prove this.

Smith: It is. And look, I think it’s important to realize in a criminal case, prosecutors have to prove each and every element of each charge beyond a reasonable doubt. That’s the highest burden we have in American law. It’s much higher than in civil case. I’ve been in some other types of proceedings there are, but it’s a very high burden for prosecutors, and so it’s a very tough standard. As it should be when someone’s life or liberty is on the line.

Mysliwiec: Right. So, tough standard but based on what we’ve heard from the victims or the accusers, do you think that it’s going to meet that baseline?

Smith: I’m always hesitant to read the tea leaves, Christian, for a couple of reasons. One is the prosecution has rested. Now, the defense does not have to put on any case. In many criminal trials, in fact, the defense does not put on a case and simply takes the position that the prosecution has not met their burden.

As we understand it, what we heard from Maxwell and her attorneys is that they do intend to put on a vigorous defense, potentially calling up to 35 witnesses in their case in chief essentially. There’s still a lot that could come out at this trial.

And the prosecutors have, I think, hit a few road bumps along the way. One of the things that stands out to me is initially the time that the prosecutors said they would need to present their case, to put on their evidence, their witnesses, was supposed to take much longer than they are now saying, than it actually took. It only took them about 10 days to do that. And whenever that happens I think it suggests that the prosecutors were cutting witnesses. There may have been problems with having certain individuals testify.

Smith: Well, it depends on the case, but what stands out is they had initially requested a much longer length of time. And then after witnesses started testifying, after evidence started being put in to the record, at that point they revised it significantly downward. Which again tends to suggest that there may be reasons they don’t want some of these other witnesses to testify at trial.

Two other points I think, quickly, stand out to me. One is, it’s interesting—the four victims that are testifying in this trial certainly are not all of Jeffrey Epstein’s victims or at least all of the individuals who have come forward as victims of Jeffrey Epstein’s abuse. And so there are always decisions why prosecutors framed their case in this particular way, why they chose these four victims to focus on. But certainly some of Epstein’s highest profile accusers have not been called to the witness stand, do not look like they’re going to be called to the witness stand.

Virginia Giuffre certainly is one who will not be called that we’re aware of. That stands out a little bit.

And then also another interesting wrinkle, two of the victims who the prosecutors did call were actually, it looks like, at or right over the age of consent in several of the jurisdictions where the abuse allegedly occurred. And so while they could offer testimony about some aspects of what occurred between Maxwell and Epstein and themselves, there were other pieces of testimony that I’m sure the prosecutors would have liked to have had that they could not offer because of that age-of-consent issue.

So, while they were still obviously very young—teens in many cases—because they were at the age of consent, the judge ruled they were certain aspects of their interactions that they could not testify about.

Mysliwiec: When you say there were likely other witnesses that [the prosecution] wanted to put on the stand, and they had to cut that back—we know that both Jeffrey Epstein and Ghislaine Maxwell had probably an enormous amount of leverage over these victims, and it makes you think how many people are being intimidated away from testifying? How many people are afraid to come out and accuse both Maxwell and, when he was alive, Epstein?

Smith: No, that’s absolutely right. Look, all these victims deserve a great deal of kudos. This is clearly a very traumatic incident that’s happened to them. In many cases, from what we’ve heard come out at trial, the abuse typically was not a one-time ordeal. It was something that was repeated over lengthy periods in multiple locations. And so I think everyone recognizes this is a very serious matter, very traumatic incidents that happened to these victims. And I think everyone wants to see justice done.

But in terms of why the prosecutors framed their cases in a certain way or why they may decide not to call someone, there could be other reasons. As I mentioned earlier, we saw Maxwell’s defense attorneys take the tack they attacked one of the victims, essentially pointing out how much money she had received from an Epstein victims’ compensation fund suggesting that there may be monetary motives behind it.

In several of the witnesses they pointed out inconsistencies between their testimony on the stand and prior testimony they had given to the FBI.

And so, as the prosecutors learned more about those kinds of problems, they may have been concerned about that. They may have been concerned about maybe some other communication that was occurring between the witnesses that should not have been. This is all just speculation really. We don’t know why they chose not to call these individuals. I don’t know if it raises a red flag for me, but it certainly piques my interest a little bit.

Mysliwiec: So, Epstein and Maxwell, of course, they had a lot of famous connections. Prince Andrew, Bill Clinton, among others. That shouldn’t impact the jury or the judge, but how does it factor into all this?

Smith: Well, look, there’s no doubt this is a high-profile trial with kind of a star-studded cast rotating in the background here. But so far what I’ve heard at testimony, there was some testimony I believe from Epstein’s longtime pilot on the first day or so of the trial where he was talking about some of the folks who flew on Epstein’s private jets, including the famed, or infamous really, Lolita Express, where some of that abuse occurred.

One of the interesting things that stood out to me, Christian, is in this indictment, prosecutors alleged that the abuse occurred at four places. It occurred at Epstein’s New York home, his New Mexico ranch, at his Palm Beach home in Florida, and then in Maxwell’s apartment basically in London. The location that was not mentioned, and this is a little interesting me as well, was Epstein’s Caribbean island that he had that was frequently mentioned as somewhere he would spend time, where I believe there are other allegations that haven’t come out at the trial that abuse occurred there.

And so that was a very interesting decision by the Southern District of New York, the federal prosecutors there, not to include any abuse that occurred on that Caribbean island in this case. And I’d be interested to know more about why they chose to take that particular tack. But again, we can really only guess as to why that is.

Mysliwiec: What are some of your guesses?

Smith: I really don’t have any good guess. Clearly, and I know that’s not a very satisfying answer in some ways, but like we were saying before, obviously the prosecutors felt that these four victims would tell the most compelling story, particularly as it pertains to Maxwell because, again like we were saying earlier, the case is about Maxwell, her conduct, her culpability, in facilitating these sex trafficking-related crimes. And so clearly they thought these four victims would provide the most compelling testimony, be the best sources for their case, and chose to focus on them and frame their case in these particular ways.

We’ll see what the defense has to say once they start putting on their case later this week. But so far the prosecutors have stuck to their script it looks like.

Mysliwiec: I want to go back to something you mentioned earlier. So, defense attorney for Maxwell, Bobbi Sternheim, has repeatedly implied that the accusers are seeking to capitalize on their charges, either for fame or exposure or for money, like you mentioned. So, I understand Sternheim has a job to do, but where exactly is the line of decency in trials like this to talk to these traumatized victims in that way?

Smith: Right. Well, it’s always a fine line and it’s a difficult job for defense attorneys, but look, we have an adversarial system. His job is to represent Maxwell, to try to create reasonable doubt-

Mysliwiec: I think Bobbi’s a woman.

Smith: I’m sorry. Bobbi’s job is to represent Maxwell, to try to create reasonable doubt in the minds of the jurors. Because remember, Maxwell doesn’t have to prove anything. [The jury] just have to decide the prosecutors haven’t proved their case beyond a reasonable doubt. So, if they don’t believe these witnesses, if they think they were potentially motivated by some other motive, like money or fame or something along those lines, that could be all they need to hang their hat and either get a hung jury or an acquittal for Maxwell.

So, I recognize what you’re saying. I think it’s a fine line. In many cases, jurors may find that line of questioning distasteful, especially if a defense attorney comes at a victim very aggressively. And so that could work against Ghislaine Maxwell in some ways if the jurors are turned off by the tone, the manner of her lawyer’s questioning. But it’s certainly appropriate even though it may be distasteful for Bobbi to ask those types of questions.

Mysliwiec: So, I mentioned at the beginning of our conversation, so there’s no cameras in the courtroom. That’s typical for federal court. We’re all relying on the media for updates on the trial. Is there anything that isn’t getting the coverage that it deserves? Is there something that trial viewers should know that they might not?

Smith: Well, I think it’s important to kind of step back and kind of take the 40,000-foot view of what’s happening here, because in the background, along with Ghislaine Maxwell’s criminal trial, you also have a number of civil suits that have been filed against both her and Jeffrey Epstein’s estate.

There’s still a lot of bad blood between the cause of the non-prosecution agreement that Jeffrey Epstein signed with federal prosecutors when he was originally charged in Florida.

If you remember, you mentioned that he was a convicted pedophile, those were charges he was convicted of in state court. And so essentially in exchange for pleading to—they were serious charges, but less serious charges than he could have been charged with, I believe, based on the evidence that we know exists.

He pled to a couple of state court felony sex crime-related charges, and got pretty lenient jail conditions, where he was in, I believe, the Palm Beach County Jail, got work release for 12 hours a day, six days a week, where he’d go to his office. Very favorable conditions. And in exchange for pleading to those state court charges, he essentially got a non-prosecution agreement from federal prosecutors in the Southern District of Florida, which is Miami, Fort Lauderdale, Palm Beach, that area. Very controversial non-prosecution agreement. The U.S. attorney who signed off on it is still being hounded by it today essentially.

But one of the interesting issues that came out of that, Christian, is there’s a federal statute called the CVRA, the Crime Victim Rights Act. And essentially what it says is that crime victims are supposed to be notified of certain proceedings in a criminal case. They’re supposed to have their input heard, their voices heard. They’re supposed to be treated with dignity and respect throughout the process. And it looks like that didn’t happen, unfortunately, with that Southern District of Florida prosecution.

There’s a couple of really interesting legal issues surrounding the application of that statute. That’s still being litigated today. There have been calls for Congress to fix some of those gray areas in the statute about what input they can have, when they have to be notified.

But all that to say, I think the background of Maxwell’s criminal trial that’s currently taking place in the Southern District of New York is really there’s a concern about the victims in this case, that everyone wants to seek justice for the victims who were subjected to clearly heinous crimes.

And I think it’s important to kind of separate, in some sense, that desire to make sure that the prosecutors, again, are able to prove their charges against Maxwell beyond a reasonable doubt and that she is appropriately held accountable for her criminal conduct. Which, if the jurors believe the testimony of the victims who testified at the trial, there certainly seems to be very troubling conduct on her part as well.

Mysliwiec: Right. So, Maxwell’s defense attorneys begin their case on Thursday.

Smith: Right.

Mysliwiec: I’ve seen at least one article saying they may close their case on the 20th, so that’s, I think, two-and-a-half days. What are your predictions on how this concludes? What should we watch out for in the defense’s case?

Smith: Well, I think we’re going to learn a lot on Thursday. Like I said, they’re saying they could call upwards of 35 witnesses in her defense. That would certainly be a lot of witnesses. Certainly more than the prosecution called. So, it could drag out for a little longer than anticipated.

I suspect you’ll try to see her attorneys drawing a distinction between her and Jeffrey Epstein, making clear the point she is not Jeffrey Epstein. Trying to paint their relationship as more of an employer-employee relationship, that she did not know that these horrific crimes were going on. And I suspect they’ll certainly try to say that she did not participate in them in any way.

One of the interesting things to look for is whether or not Ghislaine Maxwell herself will testify at trial. I suspect she will not. We have a Fifth Amendment right against self-incrimination. If any of us are accused of a crime, we do not have to testify at trial and it can’t be held against us.

Typically, I think most criminal defense attorneys would advise a client not to testify, especially if there are problematic issues in their past, like there certainly seem to be with Maxwell. But the ultimate decision will ultimately reside with Ghislaine Maxwell.

This piece originally appeared in The Daily Signal on December 13, 2021