MANHATTAN (CN) — A Second Circuit panel appeared wary Tuesday of keeping Ghislaine Maxwell’s old civil deposition testimony under wraps as she goes to trial for her role in the Jeffrey Epstein sex-trafficking web.
Fighting to make the records public is the Miami Herald, which documented the dynamics of Epstein’s sexual “Pyramid scheme” of underaged girls in a 2018 investigative series.
"It is not required that there be an absence of media publicity for a defendant to have a fair trial," Christine Walz, an attorney for the Herald and reporter Julie K. Brown, told the appeals court this afternoon.
Like most proceedings in the midst of the coronavirus pandemic, Tuesday’s hearing was held remotely.
The Herald has been the animating force behind a mostly successful and ongoing effort to unseal thousands of pages of files from a 2015 lawsuit in which Virginia Giuffre accused Epstein and Maxwell of trafficking her, but defense attorney Adam Mueller emphasized that the seal they seek would would cover only Maxwell’s testimony, a narrow subset of the case files.
"We're talking about hundreds of pages, not thousands of pages," Mueller said, putting the exact length of the deposition at 418 pages.
Prosecutors have noted that the deposition shows Maxwell perjuring herself in denying knowledge of Epstein’s sex-trafficking network, and U.S. Circuit Judge José Cabranes pressed Maxwell’s legal team on these allegations Tuesday.
“Is it fair to say your client did not deny knowledge of any activity involving underage minors, or did she?” Cabranes asked. “What’s your view of this?”
Portions of Maxwell’s deposition testimony excerpted in her indictment suggest that she did deny this, falsely, but Mueller said he could not answer those questions without commenting on a sealed document.
The lawyer focused instead on the confidentiality provisions that he said Maxwell had relied upon when she submitted to the 2016 deposition.
“All the record evidence is that she reasonably relied upon the protective order,” Mueller said.
Making disclosure especially troubling, the lawyer noted that the deposition included a number of questions in the vein of "when did you stop beating your wife?”
“The question itself implies an answer, as all leading questions do,” Mueller said.
Giuffre’s attorney David Boies argued that Maxwell did not have a reasonable expectation of privacy over this deposition, as any confidentiality would have expired if the case went forward to trial.
U.S. Circuit Judge Reena Raggi appeared skeptical about the argument.
"What is the purpose of these parties entering into a protective order if there's no protection?" Raggi asked.
Boies replied that the protective order guarded against the immediate release of the deposition, not the ability to keep the document under wraps years after the case had closed.
Maxwell’s legal team notes that the deposition eventually will be aired at their client’s criminal trial, where the document forms the basis of one of her charges.
"We don't think it's asking too much to simply preserve status quo," Mueller said. "Of course, there will be a public criminal trial."
Mueller argued that releasing the document could prompt witnesses to conform their testimony to publicly released information.
Raggi, a George W. Bush appointee, noted that would be no reason to stop pretrial press coverage in other instances.
“We would never put a gag order on their ability to publish on those grounds,” Raggi added, referring to the press.
The third member of the panel, U.S. Circuit Judge Rosemary Pooler, praised how the Herald’s reporting had helped victims of sexual assault.
“I am very impressed with the work that Julie Brown and the Miami Herald have done in this case,” the Clinton appointee said.
In an implicit nod to the presumption of innocence, Pooler asked whether Maxwell herself may be counted among the victims.
Walz rejected that proposition and called it irrelevant.
Published nearly two years ago, the Herald’s “Perversion of Justice” laid bare an effort by members of the political elite to bury allegations about Epstein’s sex ring going back decades.
The articles sent shockwaves through the political and legal communities, culminating in the indictment of Epstein and his subsequent death in jail prior to trial.
President Trump’s former secretary of labor Alexander Acosta, who helped craft a plea deal that purported to immunize Epstein’s alleged co-conspirators, resigned under a cloud shortly after publication.
The Herald also has been credited with spurring Epstein and Maxwell’s prosecutions.
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