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Ghislaine Maxwell Leans on Cosby Release to Bolster Immunity Claim

Maxwell's appellate attorney penned an op-ed with a similar argument to the one she made in federal court, prompting a sharp response from prosecutors.

MANHATTAN (CN) — In a letter to a federal judge on Friday, Ghislaine Maxwell’s attorneys say the accused sex trafficker faces the same legal snarl that sent Bill Cosby home this week, and that prosecuting her would violate due process. 

The Pennsylvania Supreme Court threw out Cosby’s sexual assault conviction and sentence of 3 to 10 years on Wednesday in a split ruling that said the state was was bound by a former district attorney’s decision not to pursue charges against the comedian in exchange for his cooperation in a civil matter. Cosby was indicted nearly a decade after the sexual assault at issue after he admitted in a 2005 civil deposition related to the same incident that he drugged women with quaaludes before having sex with them. 

Attorneys for Maxwell say a similar situation has engulfed their client, the former girlfriend of Jeffrey Epstein who is charged with recruiting victims as young as age 14 into the deceased billionaire’s infamous sex ring. 

“As in Cosby, the government is trying to renege on its agreement and prosecute Ms. Maxwell over 25 years later for the exact same offenses for which she was granted immunity in the NPA,” Christian Everdell, of the firm Cohen & Gresser, wrote in a 3-page letter.

The request to the court comes after the same court rejected an argument from Maxwell team that she has immunity because of Epstein’s nonprosecution agreement, and therefore four counts of Maxwell’s superseding indictment should be dismissed. 

“Indeed, the principle applies even more strongly in Ms. Maxwell’s case because the NPA was a formal written agreement, as opposed to an informal promise like the one in Cosby,” Everdell wrote. “This is not consistent with principles of fundamental fairness.”

Everdell asked for counts one, three, five and six of the eight-count indictment to be dismissed: conspiracy to entice minors to travel to engage in illegal sex acts; conspiracy to transport minors with intent to engage in criminal sexual activity; sex trafficking conspiracy; and sex trafficking of a minor. 

Friday’s letter followed a similar argument made by David Oscar Markus, an attorney representing Maxwell in her bail appeal, in an op-ed in The New York Daily News.

“When Epstein agreed to plead guilty and go to state prison, the United States agreed not to prosecute him or his alleged co-conspirators. This is in black and white: ‘the United States . . . will not institute any criminal charges against any potential co-conspirators of Epstein,’” Markus wrote. 

Federal prosecutors argued that the deal struck by Miami prosecutors did not apply to the federal case in the Empire State, according to Markus. 

“But that reasoning makes no sense,” he wrote. “We have one federal government, and the agreement says clearly that the United States would not prosecute Maxwell.”

Bill Cosby gestures outside his home in Elkins Park, Pa., Wednesday, June 30, 2021, after being released from prison. Pennsylvania's highest court has overturned comedian Cosby's sex assault conviction. The court said Wednesday, that they found an agreement with a previous prosecutor prevented him from being charged in the case. The 83-year-old Cosby had served more than two years at the state prison near Philadelphia and was released.(AP Photo/Matt Rourke)

Prosecutors called attention to Markus’ op-ed in a filing late Thursday night, saying they violated provisions related to extrajudicial public statements by attorneys. 

Penned by Manhattan U.S. Attorney Audrey Strauss, the letter says Markus’ op-ed is just the latest example violating Local Rule 23.1, which “generally prohibits extrajudicial statements of opinion that a reasonable person would expect to create ‘a substantial likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.’”

The government contacted Maxwell’s counsel of record in May, expressing its concern, according to Strauss. 

“Mr. Markus’s comments to the media — most egregiously, the Op-Ed — were clearly in violation of Local Rule 23.1,” Strauss wrote. 

“Not only did his statements directly comment on the merits of this case, but they did so in a manner designed to appeal directly to the pool of potential jurors in this case: the Op-Ed was published in a local newspaper, and it contained an express overture to jurors, discussing the verdict defense counsel wishes jurors to reach in this case.” 

Strauss noted that U.S. District Judge Alison Nathan had already considered and rejected Maxwell’s argument that she should be covered by Epstein’s NPA. The decision was rolled into a 34-page order that separated Maxwell’s perjury counts from her other charges. 

“The NPA does not purport to immunize Epstein from liability for crimes committed before the period that was the subject of the FBI and U.S. Attorney’s Office investigation,” Nathan wrote in April. “Maxwell’s protection is no broader.”

Markus did not immediately respond to a request for comment on Friday regarding the government's letter.

Nathan ruled on Thursday that a deposition in Maxwell’s defamation suit against her, obtained through a grand jury subpoena, should not be suppressed, since the government did not violate Maxwell’s right to be free from self-incrimination when it obtained the testimony. 

Maxwell is being held at Brooklyn’s Metropolitan Detention Center, after her Second Circuit appeal to be released on bail was unsuccessful. Her trial, which has been delayed several times, is set to begin in November.

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