Amid a fashionable backdrop of indictments of the rich and famous, the pre-trial treatment of Ghislaine Maxwell is troubling on many levels.
Maxwell, up until a rather precipitous arrest on July 2 at her New Hampshire home, on a number of charges filed earlier that week in the Southern District of New York, was perhaps best known for her relationship to (and with) financier-turned-convicted-sex-offender, Jeffrey Epstein.
Despite waiving extradition to New York, offering up a hefty bail package, and facing charges alleged to have occurred as far back as 1994, Maxwell was ordered held without bond at the Metropolitan Detention Center in Brooklyn.
She remains incarcerated there under unusually restrictive, if not punitive, conditions.
As a lawyer who has analyzed, written extensively about, and provided commentary on a national scale for many a high-profile case — including those with serious sex crime components (Michael Jackson, Kobe Bryant, the Duke Lacrosse case, Bill Cosby and most recently, and Harvey Weinstein) this harsher-than-most handling of Maxwell’s case immediately struck me as beyond odd.
In an era where we witness routinely a veritable parade of high-profile defendants marching into their arraignments with lawyers on their arms after breakfast, and marching out with GPS monitors on their ankles before lunch, why is Ms. Maxwell not being afforded the same constitutional deference as so many her other famous predecessors?
It's a more than fair question.
Her treatment in the legal arena thus far has been anything but equitable.
Perhaps the most glaring anomaly in this case, is the judge’s decision to lock Maxwell up, pre-trial, with no opportunity for pre-trial release, as if her guilt is a foregone conclusion.
A dangerous proposition for anyone who appreciates the presumption of innocence.
I know I do. You should too.
At an initial bail hearing on July 14, U.S. District Judge Alison J. Nathan ordered Maxwell jailed pending trial, stating the significant financial resources, international ties and "extraordinary capacity to avoid detection" made the risk of flight "simply too great" to allow Maxwell to remain free, holding that no set of conditions could guarantee she wouldn’t flee.
Pre-trial release of high-profile defendants has been done repeatedly .
It can be argued that the higher the profile, the lower the flight risk.
On what planet would other equally famous defendants (who were allowed pre-trial release, by the way) — like Bill Cosby, Kobe Bryant, and Harvey Weinstein; as well as Martha Stewart, Michael Flynn, Paul Manafort, Roger Stone, Lori Loughlin and most recently, Steve Bannon — be able to "avoid detection" had any of them decided to flee?
A person who’s on society’s outrage meter can’t go to a local diner without being detected.
Besides, we have the technology to tether defendants inside any jurisdiction.
It's commonly done. Couple that with surrendering passports and signing over property and handing over enough cash to miss (regardless of your income bracket) and there is your frequently used pre-trial release plan.
Not only has the judge essentially locked Maxwell up intending to keep her there until trial but is also putting a brick wall between Maxwell and her absolute right to access discovery, confront her accusers, and prepare for a defense.
These actions from the bench are in stark contrast to recent actions by other members of the judiciary. District Judge Analisa Torres freed President Trump's former chief strategist, Steve Bannon, at his August arraignment on five million dollars bond.
This right is not merely Maxwell’s, it's a right unto all Americans.
In a case where the central allegations are nearly three decades old and supported, if at all, by the untested credibility of the accusers themselves, denying Maxwell any meaningful pre-trial opportunity to push back against these accusations and the motivations behind them — which will necessarily include, like it or not, questioning the veracity of those who have provided evidence to be used against her — represents a complete deprivation of due process.
Add to that, the fact that numerous women — possibly including one or more of the anonymous accusers in the criminal case, although your guess is as good as Maxwell’s —have procured very visible opportunities with Netflix, and other media outlets, to publicly tell their stories, while prosecutors simultaneously implore the judge to keep the accusers’ identities under wraps, renders the decisions made from the bench thus far not merely detrimental, but absurd.
A person’s pre-trial treatment should not be an impediment to preparing a defense.
A person’s right to a fair trial, and to ensure one’s fundamental liberties, must be every judge’s primary concern — and not the least.
Judge Nathan appears determined to place spike strips between Maxwell, her ability to prepare a defense, and the duty of her legal team to zealously advocate for her.
We must keep in mind an arrest marks the beginning, not the end in the judicial process.
Ghislaine Maxwell is not guilty. Not yet, anyway.
And have we considered, maybe not ever?
Jonna Spilbor is an attorney, radio host and legal commentator appearing frequently on Fox News, Court-TV, the Law and Crime Network, Oxygen and other news outlets. Licensed in California, the District of Columbia and New York, she maintains offices in New York City and the Hudson Valley. Jonna can be reached at JonnaOnTheLaw@gmail.com. Read Jonna Spilbor's Reports — More Here.
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