Halsey Frank: Jurors gone wild

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Ghislane Maxwell’s attorneys say that three jurors concealed their experience of sexual abuse. One described in an interview with the New York Times how they had been sexually abused as a child, lawyered up and claims he doesn’t remember being asked questions during the jury selection process about whether he had been the victim of a crime, much less the specific type of crime for which Maxwell was tried. That’s hard to believe given the impact of such experiences, the attention that sexual abuse has been getting in recent years and the notoriety of the Epstein-Maxwell affair.

The defense has moved for a mistrial. The judge asked the parties to brief their arguments and scheduled a hearing to examine one of the jurors on March 8th. At the hearing, one of the jurors said he made an “inadvertent mistake” in filling out his jury questionnaire, failing to disclose he had been the victim of sexual abuse as a child.

In general, courts are prohibited from inquiring about jury deliberations in order to protect juries’ freedom of deliberation, to protect jurors from harassment and to protect the stability and finality of verdicts. There are exceptions to that rule for extraneous information that improperly prejudices a jury. According to the Daily Mail, two of the jurors admitted using their experiences to sway the jury. If that’s so, then the verdict should be thrown out.

It’s a huge problem and another example of people not understanding their government, not understanding their role within their government and/or not taking that role seriously.

Maxwell is the one-time girlfriend of, and procurer for, deceased sexual offender Jeffrey Epstein. Epstein is the wealthy friend of the rich and powerful who liked to provide young girls for his friends and who avoided serious consequences for his offenses by negotiating an overly lenient resolution of state and federal charges in Florida in 2008. In July of 2019, The US Attorney’s Office for the Southern District of New York indicted him, and he was pending trial there when he died in custody under suspicious circumstances in August of 2019.

In July of 2020, the US Attorney’s Office indicted Maxwell for her role in recruiting and grooming girls for Epstein and his friends, and lying about it. Maxwell was convicted on December 29, 2021 and was pending sentence when the jurors’ revelations began.

Trial by jury is one of the most important features of our democratic republic, and one of the few things we require of citizens these days. It is people’s opportunity to ensure that the laws that they make indirectly through their elected representatives are properly enforced. In a letter to Thomas Paine in 1789, Thomas Jefferson wrote that “I consider trial by jury as the only anchor ever yet imagined by man, by which government can be held to the principles of its constitution.”

Over the years since, we have refined the jury trial. As criminal jury trials are currently conducted in federal court, jurors are supposed to decide cases on the basis of the facts presented in court during trial and according to the law that the judge gives them. They are not supposed to decide based on bias, prejudice, or favor, or experiences that they have had or information that they acquired outside of the trial.

The presiding judge regulates the information that the jury receives and bases its decision on, according to the law and in the interest of making a fair and accurate determination. Part of that process is ensuring that the parties know what information the jury is getting and using so that they can test and challenge it using the adversarial process.

The court and the parties’ attorneys conduct voir dire to identify and strike jurors who may not be able to decide the case according to those rules. That process includes asking a set of standard questions. Those questions include whether a prospective juror has been a victim of a crime. They include a residual question about whether there is any reason a juror couldn’t be fair in the sense described above. 

Typically, the process also includes questions tailored to discover whether there are aspects of the particular case the jury is about to hear that might implicate bias or prejudice. In Maxwell’s case, the court asked whether jurors had experienced sexual abuse.

Jurors are placed under oath and subject to the penalties for perjury with regard to their answers. Once the jury has been chosen and the trial is about to begin, jurors take an oath to decide the case based on the evidence, not prejudice or sympathy. At the beginning and end of the trial, they are reminded to do so.

All criminal trials are solemn matters. A defendant’s liberty is at stake. As are the interests, rights and feelings of victims and the interests of the community. The stakes may have been higher in Maxwell’s case because of its unfortunate history and high profile.

Trials are resource-intensive, time-consuming processes involving numerous paid professionals. Some trials more than others. The parties investigate and prepare their cases. They brief and argue issues for the judge to resolve. They choose a jury, interrupt witnesses’ lives to bring them to court, examine and cross-examine them, and argue to the jury. Twelve or more jurors spend days taking evidence and deliberating. All in an effort to determine the truth of what happened and to apply the law to those facts.

If unbeknownst to the parties a juror has had a powerful experience that affects their decision of the case, then the parties can’t take it into account and address it. It undermines the accuracy and reliability of the facts that the jury determines and the fairness of the verdict that they render.

When a juror fails to disclose such an experience it may invalidate the trial. It is a terrible waste. It lessens the public’s faith in the criminal justice system. It can make a trial look like vigilantism. People need to understand that, and they need to use that understanding when called for jury service.

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Halsey Frank was born and raised in and around New York City and nearby Englewood, NJ. He graduated from the Dwight Englewood School, Wesleyan University and the Boston University School of Law. After law school, Halsey worked for the Department of Justice for 34 years, first as a civil litigator and later as a criminal prosecutor and civil attorney in the U.S. Attorney’s Office for the District of Columbia. In 1999, Halsey moved to Maine where he worked as a civil attorney and criminal prosecutor in the U.S Attorney’s Office until 2017, when he was nominated by the President and confirmed by the Senate to be Maine’s U.S. Attorney, the chief federal law enforcement officer for the District of Maine. Halsey retired from the Department of Justice in February 2021. Prior to becoming a U.S. Attorney, Halsey was active in local affairs, including the Portland Republican City Committee, the Friends of Portland Parks, the Friends of the Portland Public Library and the Maine Leadership Institute. He previously authored a column entitled “Short Relief” that appeared in The Forecaster regional newspaper. His views are his own.

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