Photograph: Jason Szenes/EPA
When Ghislaine Maxwell‘s legal team appealed her December 2021 conviction for helping Jeffrey Epstein sexually abuse teenage girls, her new lead attorney largely reiterated complaints she had long made about the high-criminal proceedings.
The attorney, Arthur Aidala, said Maxwell was a “proxy” for Epstein who was prosecuted “to satisfy public outrage over an unpopular non-prosecution agreement and the death of the person responsible for the crimes”. Epstein, who was arrested in July 2019 for sex-trafficking teenage girls, died in jail a month later in August, pending trial. Maxwell was arrested in July 2020.
Related: Ghislaine Maxwell wishes she ‘never met’ Jeffrey Epstein, she tells TV interviewer
Aidala, who represented Harvey Weinstein in the disgraced film producer’s Manhattan rape trial, also contended that Maxwell was so overwhelmed by “inhumane conditions” in jail that “by time of trial, she was so disoriented and diminished that she was unable meaningfully to assist in her own defense, much less to testify”.
But Aidala’s comments might have been aimed more at generating sympathetic media coverage than being a predictor of the appeal’s likely success. Maxwell cannot mount an appeal based on her own claims that she was a hapless surrogate for Epstein, or too tired at trial.
Her legal team will have to argue instead that there were legal errors in proceedings against her that necessitate a verdict reversal, and that is where her bid to have her conviction overturned will succeed or – according to many legal experts – more likely fail.
Indeed, Aidala contends that New York federal prosecutors flouted an old non-prosecution agreement which, he claimed, barred charges for being brought against Maxwell in relation to Epstein’s crimes.
The non-prosecution agreement was a provision of Epstein’s controversial 2007 plea deal in Florida, which let him avoid federal charges over allegations of sexual crimes. “As a matter of due process, the government should be held to the highest standards of both promise and performance in its agreement with its citizens,” Aidala said of the non-prosecution provision.
Aidala also maintained that Maxwell’s right to a fair trial was denied due to the imbroglio with juror Scotty David. During jury selection, David did not disclose that he had been sexually abused as a child – a question which was asked of potential jurors – prompting Maxwell’s attorneys to request a new trial.
David, who claimed he did not disclose this on a juror questionnaire due to distraction, said in post-trial interviews that he discussed this alleged abuse with his fellow jurors, which let them see things from a victim’s perspective. The judge, Alison Nathan, rejected Maxwell’s bid for a new trial over David’s omission.
Maxwell was “denied her right to be tried by a fair and impartial jury when a juror revealed that he had made materially false statements in jury selection that concealed that he had experienced the ‘exact same thing’ as the victims, namely, childhood sexual abuse “, Aidala also said. “To compound the error, during jury deliberations, he used his undisclosed prior experience to convince other jurors that the defendant was guilty.”
While Aidala has cited these alleged errors of law in public statements, proving them to the second circuit court of appeals and convincing an appellate panel that these issues were egregious enough to overturn Maxwell’s conviction and order a new trial is a hard road to travel.
Court administration dates from 2015 indicate that less than 9% of federal appeals resulted in reversals of lower courts.
“The likelihood of the second circuit reversing her trial verdict is close to zero,” said Ron Kuby, a longtime criminal defense attorney with a focus on civil rights. “The second circuit tends to uphold almost all criminal convictions as a general matter.”
In the rare cases the second circuit does reverse a trial court outcome, leading to a new trial, it is typically because prosecutors have over-stretched a legal theory – or because the US supreme court has made a decision that affects proceedings in lower courts, Kuby said.
“But Maxwell’s trial was none of that – the Maxwell trial was all very well-plowed legal territory,” Kuby said. The proceedings against Maxwell – which stemmed from serving as Epstein’s procurer of victims – were not complicated by racketeering counts, nor convoluted bribery charges.
“It’s like very, very, very fancy trappings, but fundamentally, it’s the prosecution of a pimp, which is not that complicated,” Kuby said.
Speaking generally of appeals, veteran criminal defense attorney Kevin Faga said if an appeals court doesn’t find an error of law, the petition won’t go anywhere. It’s a “hard burden to prove that there was an error of law”.
“Her lawyers will have to convince an appellate court that there was an error in the law made by the trial court, and if they’re successful, the appellate court has to determine” whether the error warrants a retrial or further investigation before they determine whether a retrial should be had, Faga said.
An appeals panel can order that the case return to the lower trial court for a hearing on various issues.
Rachel Fiset, co-founder of Los Angeles firm Zweiback, Fiset & Zalduendosaid she thought a successful appeal was “unlikely”.
While Maxwell, who was sentenced to 20 years in prison, will probably fail in her appeal, there is still a reason for her to try.
“She’s looking at a very long sentence, and they are looking at ways to have it overturned, and there are not any options beyond an appeal,” Fiset said. “She doesn’t have very much to lose other than the cost of the appeal.
“It’s not uncommon for people with a lot of means to appeal their conviction in the hopes that it’s overturned. Maxwell has remained very steadfast that she has not committed these crimes and that it’s not her fault, so the appeal is not surprising.”