“Guilt by association”: That is the message the attorneys for Ghislaine Maxwell will try to send to jurors beginning Monday. Maxwell faces nine criminal charges in her federal trial, six of which involve conspiracy and enticing minors to travel to engage in illegal sex acts, the transportation of minors to engage in criminal sexual activity and two involving perjury during a civil deposition in 2016. The perjury counts have been severed and will be tried later.
Maxwell’s anticipated defense is that her prosecution is “Epstein by proxy.”
The allegations are that from 1994 to 2004, Maxwell not only “assisted, facilitated, and contributed” to the late sex offender Jeffrey Epstein’s abuse of four minor girls but that she herself also sexually abused the victims. The indictment alleges that Maxwell would befriend the victims, form a rapport with them and then “normalize sexual abuse.” Maxwell insists that she is innocent and claims that she is being prosecuted only because of her relationship with Epstein.
Maxwell’s anticipated defense is that her prosecution is “Epstein by proxy,” as in Epstein’s victims needed someone to blame after he died, so the focus has been directed upon her, instead. There is a long-standing and hallowed constitutional principal of “innocent until proven guilty” that Maxwell will argue has been trampled on because the public is “rabid about Epstein,” according to a source.
Thus, instead of the government having the burden of proof in this case (to prove her guilt beyond and to the exclusion of every reasonable doubt), Maxwell will contend that she now has to prove her innocence, which is not how the criminal judicial system is supposed to function.
On the eve of her trial, I had the opportunity to interview Ian Maxwell, one of her older brothers. He shared his thoughts about the trial and the allegations in his sister’s case. He said Epstein “led an extraordinarily compartmentalized life, showing people what he wanted them to see and to believe about him,” adding that Epstein “clearly duped a lot of highly intelligent men and women, my sister being no exception.”
Because the allegations are “between 20-27 years old, it may well be the accusers may be confused at this distance as to what did or did not happen,” said Ian Maxwell, who recently claimed to CBS News that his sister is a “patsy” and that now that Epstein is dead, the prosecution needs a scapegoat.
The trial, which is expected to last six weeks, will include testimony from all four of the victims identified in the indictment. The original jury pool of more than 600 people was reduced to a group of 231 prospective jurors, which was then whittled down to a pool of 58 people, from which 12 jurors and six alternates will be selected Monday. During the jury selection process, which was conducted by the judge, jurors were asked about their knowledge of and exposure to the facts and details of the case, their use of social media, their feelings about wealth and wealthy people, their personal lives and their households. Interestingly, some jurors claimed that they did not know a lot about Epstein or Maxwell; several prospective jurors said they did not know about Maxwell’s name at all.
Interestingly, some jurors claimed that they did not know a lot about Epstein or Maxwell; there were several prospective jurors who did not know about Maxwell’s name at all.
The federal judge, Alison Nathan, has already ruled in favor of the prosecution on several key issues: The accusers’ identities can be kept anonymous, and the prosecution can refer to them as “victims” and “minor victims.” In addition, Nathan has allowed the public and the media to have access to the proceedings, over the defense’s opposition.
Maxwell has been in custody for 17 months, despite demands that she be released on bail. Her family has complained to the United Nations. The petition filed by her brothers and sisters, including Ian Maxwell, argues that her pretrial detention is “arbitrary, not necessary … and that her presumption of innocence no longer exists.” Maxwell has claimed that her conditions in jail are “inhumane” and that she cannot effectively assist her counsel in preparing for trial. Her counsel characterized the conditions of her detention (the size of her cell, the unnatural lighting and the round-the-clock observation by four guards) as “torture.” Nathan, citing her concerns that Maxwell is an extreme flight risk, has denied her repeated motions for release. In 2008, Epstein entered into a non-prosecution agreement with the Justice Department, under which he pleaded guilty to state charges in Florida of soliciting and procuring a minor for prostitution. He served 13 months in a work-release program, paid restitution to the victims and registered as a sex offender. The agreement purportedly immunized and protected his alleged co-conspirators and other people from criminal charges. As a result, Maxwell’s lawyers have argued that the charges against her should be thrown out. We saw this play out in Bill Cosby’s case, when the Pennsylvania Supreme Court ruled in June that his conviction should be dismissed because of a 2005 non-prosecution agreement with then-Montgomery County District Attorney Bruce Castor. Nathan, however, has denied Maxwell’s motions to dismiss, ruling that any prior deal between Epstein and the federal government does not insulate Maxwell from the charges in her case because the agreement was binding only in the Southern District of Florida. Maxwell has not asked for a plea deal from the feds, and the feds have not offered her one. As a result, any notion that she would be willing to provide evidence implicating other (perhaps very famous) people does not seem to be viable at this time. Instead, the government will have to prove its case, and Maxwell’s defense team will have to attack the credibility of the alleged victims. One tactic that Maxwell will deploy is the use of an expert witness who is a psychologist and professor at the University of California, Irvine, School of Law. This expert witness will testify that one’s memory weakens over time and that memories can be altered or distorted based on external factors like news reports or conversations with third parties. Maxwell will also try to convince the jury that she, too, was a “victim” of sorts who was exploited by Epstein. As the trial progresses, we will have to see whether that strategy works — or whether Maxwell’s day of reckoning is finally upon her.
Katie S. Phang
Katie S. Phang is the host of "The Katie Phang Show," which airs Saturdays at 12 p.m. ET on MSNBC. She is a legal contributor for NBC News and MSNBC based in Miami. She leverages her significant trial attorney experience to provide analysis and commentary on the latest legal issues. 
