Juror Denies Lying to Get on Ghislaine Maxwell Jury

underage girls with Jeffrey Epstein. But now that verdict is in jeopardy because a juror did not disclose a history of childhood sex abuse during jury selection, but then in several newspaper interviews after the verdict, said that he used his history to convince fellow jurors to convict Maxwell. That juror went from the jury box to the witness stan this week in adhering to decide whether Maxwell should get a new trial. My guest is former federal prosecutor Jessica Roth,

a professor at Cardozo Law School. So Jessica during number fifty testified that he didn't lie deliberately when he answered no to question forty eight on the juror questionnaire, which asked, have you or a friend or family member ever been the victim of sexual harassment, sexual abuse, or sexual assault. He said he was distracted by thoughts of a recent breakup.

How does that explanation strike you well? As I understand, if he also said that he was late in the day and it was an honest mistake, and as the government argued in its brief opposing the motion for a new trial, this was a lengthy questionnaire. This was, I believe, towards the end, and it was one of multiple subparts.

It's really going to come down to whether the judge found him credible, and whether the judge believes his testimony that he was not intentionally withholding that information but failed to appreciate that the question was calling for an answer with respect to his own history, or even to appreciate what the question was calling for at all because he was tired or distracted. Maxwell's lawyers argue that they didn't have the ability to question him about possible bias, and

that they would have tried to get him dismissed. So, no matter if he did it unintentionally or intentionally, isn't this the kind of juror that the defense should get a chance to knock off the jury. Well, if he had answered yes to these questions that disclosed his relevant own history of sexual abuse, there would have been follow up questions for him, as there were for other perspective jurors who disclosed that they had also been the victims

of sexual abuse. There were other such prospective jurors, and when they disclosed that information, they were asked additional questions to inquire into whether they could be staring i partial jurs in the case. So, if this juror had given a similar response of yes disclosing his own history of sexual abuse, those very same questions would have been asked. But it's not conclusive of the motion before the court.

The court would also have to decide whether or not he could have nevertheless, have been a fair and impartial juror. The very inquiry that the court would have engaged in upon his disclosure of this information, and that was the kind of information that court was trying to elicit at the hearing on the motion for a new trial, which was essentially to ask the follow up questions and to try to get at the very same inquiry the court would have been engaged in during the vod gear process.

Had he answered the questions in the affirmative the first time around. He swore multiple times that his experience did not affect his ability to judge Maxwell's case impartially. But isn't it apparent that his past abuse made a difference because he essentially said it did. He told several media outlets that he raised his childhood abuse during deliberations to sway other jurors who doubted the testimony of some of the government's witnesses against Maxwell. So don't his statements to

the media dis prove what he said on the stand. Well. One of the challenges that the Court bases in deciding this motion is that the Court is precluded from considering any statements or other information about what was said during

the jury deliberations in deciding the motion. So, even though it's been reported in the media what he said during the deliberations referencing his own history of sexual abuse, those statements, anything about what happened in the jury room cannot be part of the Court's inquiry at this juncture, and so instead, what the Court is focused on is what is the

nature of his history with sexual abuse? Is there anything about the particulars of his abuse or about essentially how he has processed and reacted to it, as evidenced by

how he responded during the word year process. Is there anything about all of that that would suggest that he was not a fair and impartial juror, though the court is really cabin in terms of what it can consider in deciding whether he is a juror who would have been rock for cause because of concerns about him being fair and impartial, the juror had told the court that he wouldn't testify at the hearing unless he got immunity.

Can you draw any inferences from that? I think that that is just the product of him and his lawyer recognizing that he had potential criminal exposure based on the fact that he had given answers under oath during the voyader process that he has subsequently realized were not true, and so there was the possibility of exposure for perjury, and so he said, through his lawyer, he would have start his Sistmendment right against self incrimination, and to overcome

that assertion of the privilege, the government needed to grant him immunity, effectively saying we will not use your testimony here in this hearing against you. In an subsequent criminal prosecution. So I don't think we can infer anything from the fact that he took the fifth and was granted immunity other than the fact that he recognized there was the possibility of criminal exposure based on his statements during the

dear process under oath. So what is the standard that the judge will use to try to decide whether or not to grant a new trial. The ultimate standard is whether or not the judge is satisfied that this is a juror who was able to be fair and impartial. In this case, the defense is pointing to the facts of his abuse and the fact that he did not disclose them as evidence of the fact that he was

biased and could not be fair. I think the defense and its briefing also pointed to the fact that he had given interviews to be sort of speaking out the limelight, is suggesting that he was biased and against mis maxwell, as well as some statements he made to the media about how this is essentially a win for victims everywhere, as again suggesting bias. The government is pointing to the

fact that this was a split verdict. It was not a guilty verdict on all accounts, which suggests that he, as well as all the other jurors, were careful and discerning about the evidence, and that the verdict was not the product of biased on his parts. They've also pointed to some of his other statements to the media about how careful he was with respect to reviewing the evidence, and that he went in with an open mind and somewhat skeptical in fact, and presumed this maxwell in a sense,

until proven guilty. So it's really going to come down to the judge's assessment of whether or not this was a juror who was capable of being fair and impartial. If he had been asked the kinds of questions during the Vardier process that he was asked that this hearing, would the judge have excused him? Those are fundamentally the

questions the court is going to be struggling with. If the court determined that he lied intentionally in order to get on the jury, that's going to be a factor that's going to weigh heavily, I think toward a finding that he is not or was not fair and impartial. If the court determines that it was inadvertent, that would be a factor that would be significant in determining that he could have been and was fair and impartial. So whether he lied or not would just be one factor

among many. It wouldn't be determinative. Well, the parties are actually in disagreement about that. You see their brief. The government is saying that it's actually a prerequisite that the court firm and that he lied intentionally under its reading of the relevant precedents in the Second Circuit. The defense takes a different view of those precedents and says that it's not a prerequisite that he have intentionally lied, but

that effectively that's one factor. And so the court is, i think, as a threshold matter, perhaps going to have to resolve that question. If the court finds that he lied, perhaps the court won't have to reach that question necessarily. I think really the court will only have to decide if the court finds that he did not intentionally lie. Because in that case, if the government is correct and its reading of the precedent that it is a prerequisite that he has lied, right, then the court wouldn't go

further in its inquiry. Does the judge consider at all the fact that the victims would have to testify again at a new trial and the length of time it took to try maxwell are those considerations. They're not considerations in an immediate sense. They're not part of the legal standard that the court is going to be applying here, which is much more specific to whether or not the

juror was fair and impartial. But in a sense, considerations about the impact on witnesses and concerns about finality are essentially baked into the overall standards that courts apply when

considering motions for a new trial. Motions for a new trial are disfavored in part because of the disruption to victims lives and witnesses lives the idea that they would have to testify again, and so courts are instructed generally under the standards governing motions for a new trial that they should only be green when there's essentially a manifest injustice.

But then when we get to the specifics of the rationale for emotion for a new trial being based on a juror who gave false statements during war a dear, then in a sense we get a much more specific standard that's really focused on whether the juror was fair and impartial. Would you be surprised if the judge granted a new trial. It happened so rarely, it does happen

so rarely. Not having been in the courtroom, it's hard to get a feel or what the witness's demeanor was like and answering these questions, I think a lot is going to turn on the judge's evaluation of the witness's credibility in answering these questions about why he did not give statements that were true, because whether it's despositive or not, whether or not he intentionally lied, it's certainly going to

be a very heavy factor. If the court finds that he lied, that would tend to suggest more a motivation on his part to try to get on the jury, and that in turn suggests more of a bias towards the defendants, and therefore that he would not have been Sara and impartial. Thanks for being on the show, Jessica. That's former federal prosecutor Jessica Roth, a professor at Cardozo Law School. The Supreme Court handed down two decisions involving

state secrets. The court reversed a win for the First War on Terror detainee Zubda, saying the government doesn't have to turn over information about a LED CIA black sides in Poland because doing so would harm national security. In ruling for the government, the Justice has affirmed a sweeping assertion of the so called state secrets privilege that allows the US to continue to stay mum about the existence of black sites abroad, even though the information is widely known.

And the Supreme Court ruled in favor of the government in its effort to limit disclosure of the surveillance of Muslim communities in southern California. In a unanimous ruling by Justice Samuel Alito, the Court said that the U. S. Court of Appeals for the Ninth Circuit got it wrong when it said that the state secrets privilege used to block information the government deems harmful to national security, is

totally displaced by the Foreign Intelligence Surveillance Acts procedures. Joining me as former federal Prosecutor George Newhouse of Richard's Carrington, So,

George tell us about the case involving the FBI. So it was a unanimous nine and no decision involving a case where the FBI FBI versus Fuzzaga, which, again, as you correctly point out, the second decision in two days dealing with this state secrets doctrine, something I might add that we rarely, very rarely see, particularly in the criminal world, because if it's a state secret, the government protects the

secrets first of all by not bringing the case. So in Zubaya, that was a civil case brought by someone who had been subjected to shall we say, enhanced interrogation techniques,

some call that torture. UM. So he said, I have a claim against the United States for torturing me, and he filed a lawsuit, and the government said, well, we can't really defend this case because to defend the case would involve the disclosure of top secret classified information state secrets, and the court, I believe, upheld that that claim in

that case. Um. The Zaga, the case involving the internal investigation of some Muslims in Orange County, California, is a little bit more interesting because in that case, likewise, they brought a civil case that involved, by the way, a fascinating dispute going back to two thousand and six, and if you remember, after two thousand one, for almost a decade, the FBI spent an enormous amount of time and resources following Muslims around, and in that case they launched a

fourteen month counter terrorism operation or investigation dealing with these Muslim community in southern California, UM. And here they relied, as they frequently do in these cases, on an informant, a guy named Craig Monteya, when he came posing as a Muslim convert um, and as they always do in these cases, recorded all of his conversations with everyone in the mosque, recorded license numbers, and it's like a page out of the Godfather, and turned all that information over

to the to the FBI. The main difference being, unlike the Godfather, the Muslims in Orange County weren't violating the law. They weren't doing anything other than they say, exercising their first mment rights. So they brought a lawsuit that said, hey, you can't do this to us. This was an illegal surveillance because you were doing it because of our our religious creed, not not because we were suspective of any

any wrongdoing. And the interesting twists in this case is this their informant, after about a year, came up clearly with nothing, and he then began to make provocative statements about jihad and other clearly criminal acts. That's so alarmed the pete the Muslims in Orange County that they reported it to the FBI kind of my right. Um. The FBI,

of course immediately shut down their operation. UM, they parted ways, and at one point the informant then made go went public saying I had been investigating this group in in Orange County, and in two thousand eleven, UM, on the basis of the spine the Muslims in Orange County, I brought a lawsuit. So that was an interesting twist. So

tell us how state secrets came up. They brought the lawsuit and the government responded by saying to the district court, well, you need to dismiss the case because the only way we could defend this case would be to disclose state secrets. And the plainists said, well, unfortunately, under the statue called the Foreign Surveillance Intelligence Act or FISA, UM, there's a section of that Act eighteen oh six point f that basically,

according to the plaintiffs, repeals the State Secrets Act. It's supplants it, and it provides for a separate procedure for the district court to decide whether or not otherwise would be privileged or class sign information can be disclosed. So that's the case that went to the Ninth Circuit. The district judge dismissed the case. The Ninth Circuit said, no, that was wrong, and they reversed on the basis that

FISA they claimed, repealed the State Secrets Act. Now that's a remarkable and unusual holding that the government appealed to the Supreme Court. So I guess the justices found it remarkable as well. It was a unanimous decision. Tell us about it. So the Supreme Court decided, look, we read visa carefully, and there's nothing in this particular section eighteen h six f which was decided that repeals the State

Secrets Act um. And the Alito, who is of course conservative and a strict constructionists, so there's nothing in that statute that repeals it, even implicitly. And therefore the Court, on a very narrow ground, reversed the Ninth Circuit and said, this case can go back to the District court. State secrets doctrine may well apply. Undoubtedly it will um, and then you know, they'll be further proceedings. So it was

a very interesting collision in between these. No one has ever had a case that I'm aware of where fis a very limited statute um in a way collided with the State secret sect. But we may see more of

these kinds of disputes. Finds that by the way, really mainly authorizes the government to conduct foreign intelligence surveillance of foreign entities basically spies for a foreign governments that are running around in the US spying on our citizens are subject to fies A surveillance and very rarely does that information ever does a government ever attempt to inder it into a criminal case. So that's why it was an interesting decision. Since the informant went public, can they use

his testimony in the lawsuit? Great question? So what the informant would testify to is undoubtedly going to be okay because the informant almost by definition, would not have been told about the classified, the state secret portion because the informant was not an FBI employee. He was who knows what his motivation was, but he was a private citizen

through the FBI then recruited to work for them. So it's possible that there could be some instructions that the FBI gave the informant that the government would claim to be a secret and like the district court, of course, when that claim is made, will weigh it, balance the interest there made, and be what's called an in camera expert a hearing, which bees the judge would do close to the public and decide whether or not there any secrets.

Now that the information is primarily going to be UM sequestered, if you will, will be why did the government target this particular Muslim community, What was the predication or basis

for that investigation? And the government will claim that that information would necessarily disclose um intelligence and or investigative or counter intelligence techniques, UM that obviously they need to keep secret because our enemies will follow this closely and could learn, Oh, you want to get away with spying in the US and beat the FBI, and this is how you do it. So State secrets will be adjudicated or decided by the

probably the district court in this case. But yes, states secrets doctrine was really revived by the Supreme Court in this instance. So I'm wondering if you look at this case together with the Zoo Beta case, it seems like it's going to be very difficult to sue the federal government when what's alleged is an illegal investigation in this case, you know, an investigation that violates religious freedom. No, it's a great point, that's correct. It's a nice catch, that

catch twenty two. And the catch twenty two is you can sue the government claiming that the investigation violated your civil rights, your First Amendment rights, but you may be then denied the actual underlying evidence in the possession sole possession of the federal government that would enable you to prove that case. So the case will be ultimately thrown

out for lack of evidence. And that evidence is in the hands of the government, and the State Secrets Act, at least according to the government, exists to protect that information from being disclosed. So there's a balancing that's going to occur. Uh. And as it usually happens in these cases, um, the finger, if you will, goes on the side of the scales favoring the government, making these cases extremely difficult to make. This was unanimous, whereas the other one was.

The Zabeta case was splintered every which way. Why was this one so much easier? Is it just because it was narrow? Well, it was easier because, frankly, it was a narrow question of statutory interpretation, and you're right. When it's nine zero and you have the six conservatives and three liberal justices all agreeing, then clearly they all agreed that the statute in this case BISA did not overrule

the State Secrets Acting. Alita wrote a very short but very tightly reason to be in um and and indeed they stressed in the in his decision that this was a narrow question question um about whether advised it displays states secret. The Justice has made a clear and sending it back um that the plaintiffs are free to litigate and free to they can free to challenge the imposition of the State Secrets Act. So I think it was nine zero because that the case will continue, perhaps not

very long. But I think the case involving Zoobida, the torture at the Black Side overseas, I think that one clearly was probably going to be going to be killed by the fact that almost of the evidence that the government would have in its possession relating to the claims would clearly be covered by state secrets and therefore the government would be entitled to withhold it. Thanks George. That's George new House of Richard's Carrington, And that's it for

this edition. Of the Bloomberg Law Show. Remember, you can always get the latest legal news by listening to our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast, Slash Law, and don't forget to join us for The Bloomberg Law Show every week now at ten am Wall Street Time, right here on Bloomberg Radio. I'm joom Brasso, and you're listening to Bloomberg