Health

Fearing mistrial because of virus, Maxwell judge extends jury’s hours

As the jury
completed its fourth full day of deliberations in Federal District Court in
Manhattan, the judge, Alison J Nathan, said she feared jurors and trial
participants might become infected and forced to quarantine, and raised the
specter of a mistrial.

“We are,
very simply, at a different place regarding the pandemic than we were only one
week ago,” Nathan said, speaking outside the jury’s presence as she cited what
she called “an astronomical spike” in cases. She said later that she had extended
the jury’s hours to 6 pm and would also have jurors continue deliberations
through the holiday weekend until they reach a verdict.

“Put
simply,” she said, “I conclude that proceeding this way is the best chance to
both give the jury as much time as they need and to avoid a mistrial as a
result of the omicron variant.”

Close to 5
pm, the jury sent the judge a note, saying, “Our deliberations are moving along
and we are making progress.”

Addressing
the jurors at the end of the day, Nathan said she would ask them to work
through the rest of the week — including Thursday and Friday, which had been
scheduled as days off. She did not tell the jurors of her plan to have them
work through the weekend.

The note was
one of about a dozen the jurors have sent throughout their deliberations
seeking legal guidance, testimony and office supplies. Until Tuesday afternoon,
they had given no clear indication of how their discussions were progressing.

The trial of
Maxwell, who has been charged with recruiting and grooming underage girls for
sexual abuse by Jeffrey Epstein, included three weeks of testimony by two dozen
government witnesses and nine defense witnesses. The jury began its
deliberations late Dec 20, but because jurors were given days off for the
holiday, the panel completed only three full days of deliberations by the end
of Monday of this week.

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Court
officials already have signaled their concerns about the variant, announcing
upgraded COVID precautions Monday, including rules that anyone in the court must
wear a high-quality respirator mask, such as an N95.

The issue of
how forcefully a jury should be encouraged to reach a verdict is always a
delicate matter. Defense lawyers argue that unduly rushing a jury could
pressure it to return a guilty verdict, while prosecutors do not want to
provide the defense an issue on which to base an appeal.

As she laid
out the expanded schedule to the jury Tuesday, Nathan repeated verbatim a
phrase she said Monday: “Of course, by this, I don’t mean to pressure you in
any way. You should take all the time that you need.”

The
discussion about the potential impact of the coronavirus on the trial came
Tuesday as the judge and the parties continued to grapple with a perplexing
jury note received Monday.

Most of the
notes, which have been read aloud by the judge, have sought transcripts of a
particular witness’ testimony or clarification of legal issues — the definition
of “enticement,” for example. Others have pertained to scheduling or logistics
— a request for an early lunch or departure or that a piece of testimony be
presented in a binder. On Monday, the jurors also asked for a collection of
study aids: multicolored Post-it notes, highlighters and a “white paperboard.”

While the
notes bore no indication of discord or an impasse on the panel, the
communication that arrived Monday afternoon spurred a debate over precisely
what the jurors were asking.

The note
consisted of a single sentence of about 40 words that pertained to an accuser
known as Jane. It appeared to ask whether Maxwell could be convicted on one of
the counts if she “aided in the transportation of Jane’s return flight” from
New Mexico, where Jane said she was abused.

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“We find it
confusing,” Alison Moe, an assistant U.S. attorney, said to Nathan.

“I don’t find
this note confusing,” a defense lawyer, Christian Everdell, responded a few
minutes later.

“Well, I
find it confusing,” Nathan declared, saying she would direct the jury to the
instructions she had earlier given them.

The
instructions — also known as the jury charge — run 80 pages for Maxwell’s case
and were the result of days of behind-the-scenes wrangling between the two
parties about how to frame certain legal standards and what kind of details to
include.

Although
none of the jurors in Maxwell’s trial have fallen ill, federal judges in New
York City faced a similar challenge when they were struggling to complete
trials in March 2020, the early days of the pandemic.

In one case,
a federal sex-trafficking trial in Brooklyn, jurors decided to work late,
reaching a verdict around 10 pm In Manhattan, a judge suspended a federal
sex-trafficking trial after several days, concluding that jurors would be
unable to deliberate safely in the jury room and would be likely to feel too
anxious, rushed and distracted about infection to focus on reaching a verdict.

“It is
untenable to continue with this trial now or at any time as long as the current
public health crisis persists,” the judge, Paul A Engelmayer, said at the time.

Nathan
herself confronted such an issue in March 2020, when she allowed an ailing
juror to continue participating in jury deliberations remotely from his
apartment via FaceTime.

“We are
under extraordinary circumstances,” the judge said then.

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