THE MAXWELL SERIES: THE PRETRIAL TRANSCRIPT
by Anne P. Mitchell, Esq. – zero hyperbole and 100% facts in plain English about what’s going on with this administration and the law
We’re kicking off the Maxwell series of 22 transcripts with the pretrial transcript of the last pretrial hearing before jury selection and the trial actually begin. This pretrial hearing took place on November 23, 2021. The trial started on November 29th (we’ll be covering day 1 of the trial tomorrow). The jury has been selected, and will be seated at the beginning of the trial.
One of the benefits of starting here, then going into the transcripts for each day of the trial, then to the transcript of the sentencing, is that you will get a really good overview of how criminal trials unfold and are conducted, and Notes from the Front members who want to do a really deep dive will also have each transcript (yep, all 22 of them).
Maxwell’s trial was overseen by Judge Alison Nathan, an Obama appointee. She served in the Southern District of New York (SDNY) until March of 2022, when she was confirmed to the Second Circuit Court of Appeals, having been nominated for that position by Biden. Where, in the transcripts, you see “The Court:”, that is Judge Nathan.
As Judge Nathan calls the Court to order, she asks lead government attorney Maurene Comey if she has anything she wants to bring up before Judge Nathan starts with what’s on her list. Comey does indeed have things she wants to bring up, such as the disallowing of certain topics from the defense’s cross-examinations. These include questions about prior criminal convictions of the witnesses, and “other personal information that might either identify anonymized witnesses or embarrass witnesses.”
Then Maxwell’s lead defense attorney, Jeffrey Pagliuca, speaks up, saying that the defense believes that questions about these things should clearly be *within* bounds.
You can sense that not only is Judge Nathan no-nonsense, but as this is the culmination of a long series of court actions (the case was filed back in June of 2020, and it is now November 2021, so it’s been more than a year of motions, hearings, etc.), by this time her patience may have been worn a bit thin, and she admonishes first Comey to have further dialogue with the defense, and then she admonishes the defense, interrupting Pagliuca mid-sentence, saying “You’ll have a mature, reasonable discussion, and come to some agreement where agreement can be had.”
Just like an overworked, weary parent lecturing her two squabbling children.
And it’s only the beginning of the hearing!
Then the government (i.e. Comey – and yes she is James Comey’s daughter) tells the Court that the defense has *subpoenaed* one of the victim’s *attorneys* to be a witness in this case, saying that the government “has no idea what admissible testimony that attorney could possibly offer at this trial that would not be covered by attorney-client privilege.”
To which Pagliuca responds “I don’t think that it’s appropriate for me to have to discuss defense strategy in this context.”
To which *the Court* responds “That’s fine. There will be no — without briefing, you will not call an attorney for a witness, period.”
Like I said, I’m pretty sure her patience is wearing thin, and the trial hasn’t even started yet!
The next issue to be brought up is that there is going to be a financial institution (a representative thereof) called as a witness, and it turns out that one of the jurors (Juror 93) is an attorney at that financial institution. And that while the government attorneys were meeting with this witness there were attorneys from the financial institution (not the juror) present. This isn’t an existing issue per se, but it could *become* an issue, so the government is making the Court aware of it.
By the way, you’ll encounter some terms with which you may not be familiar so:
“voir dire” = jury selection
“impeach” = in the courtroom context it means to use a witness’ own previous testimony or other statements to catch them in a lie. It’s the legal equivalent of “Liar, liar, pants on fire.”
Next the defense clarifies that because there is a massive amount of documentary evidence in this case, it will be presented electronically on screens to the witnesses on the stand, to the Court, to the jurors, and to opposing counsel, rather than passing out hard copies.
But *some* materials need to still be introduced on paper, says the Judge, because they contain sensitive, sealed information (like victim identities) that the public is not allowed to see, and the screens are visible to the public. The defense doesn’t like this, he says it will be “an unwieldy and impossible project”.
—
THE COURT: To use paper?
MR. PAGLIUCA: To use —
THE COURT: The way trials have been done for a very long time?
—
(I love this judge.)
As is often the case during pretrial proceedings, one side or the other is seeking to convince the judge that certain evidence should be excluded or admitted, and the judge is letting them know her ruling on that. The same goes for questions regarding the classification of witnesses (are they a witness to facts, or an expert witness), including a witness who is going to give testimony about the extraction of data from hard drives that have been submitted as evidence.
Next they take up a matter of how to word a particular jury instruction regarding the testimony of ‘Witness 3’, and the Court suggests:
“However, you may not convict the defendant on the basis of the testimony regarding the sexual conduct between this witness and Mr. Epstein.”
You see, the government wants to add the word “solely” to that instruction; the Court says that would suggest that Maxwell *could* be convicted on the basis of that testimony if it was taken in conjunction with other testimony.
If you read the transcript you will quickly come to see that there is a reason that I say that attorneys have degrees in hair-splitting, and the conversation around the jury instruction is a great example.
You will also discover that a witness known as ‘Accuser 2’ is expected to testify about being victimized at Zorro Ranch where, the Court says, Accuser 2 was above the legal age of consent in New Mexico, even though *not* above the age of consent in New York, where the trial is being held.
This is the last matter of law discussed in the hearing, the very last moments of this pretrial hearing talk about how the jurors will be questioned by the Judge at the start of the trial as to whether they heard, read, saw, talked about, or researched anything about the case since they were last there.
And that’s it for today!
Whew, and the trial hasn’t even started yet!
Notes from the Front members: The pretrial transcript is in your inbox now.
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P.S. If you actually read all the way to the bottom please leave a comment that includes the word “squabbling”. It will show me that my efforts aren’t in vain and that people actually *do* read these things, and it will drive those who just skim crazy wondering just why everyone is talking about squabbling! ;~)
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