Juror Revelations Could Overturn Maxwell Conviction

year sex trafficking scheme with Jeffrey Epstein. But now the verdict that was hailed as long delayed justice for the victims is in jeopardy. In newspaper interviews, a juror said that during the jury deliberations, he revealed that he had been the victim of sexual abuse as a child, and that his story helps sway other jurors who questioned the credibility of some of Maxwell's accusers. Than a second juror made a similar disclosure, joining me as former federal prosecutor

Jessica Ralph, a professor at Cardozo Law School. Jessica explain why the revelations by these jurors are leading the defense to ask for a new trial. A descendant is entitled to a trial by a jury that is fair and impartial. That is a constitutional guarantee. A defendant is not entitled to a perfect trial, but at a minimum, to a trial by a jury that will decide the case based on the evidence presented in court and not influenced by

any bias. And so the problem that has been raised by these recent revelations by two jurors is the concern that they may have harbored a bias against Maxwell based on their own prior experiences as victims of sexual abuse. And so what the court is going to be trying to determine is whether, essentially these jurors should not have

been seated because of those prior experiences. Clearly, the question in the air that the jurors had to fill out asks have you are a friend or a family member ever been the victim of sexual harassment, sexual abuse or sexual assault? So was their misrepresentation here by either juror Well, there are a couple of things we still don't know. So we don't know how he answered that question on

his questionnaire because it's under steel. So the lawyers may know, but the general public doesn't know yet how In fact, he answered that question. It's possible that he answered the question accurately and did disclose that he had prior experience of abuse, and that the lawyers either didn't catch it or failed to follow up on it, either deliberately or inadvertent. Unlikely they would have deliberately failed to follow up on it,

but it is possible that they missed his answer. So the first order of business, I imagine for the parties right now is going to be finding his questionnaire and seeing how, in fact he answered it. And it seems unlikely that he answered it in a way that disclosed the abuse, because if he had, it is likely that the attorneys would have asked follow up questions about it. And according to the reporting, the transcript of the vardier does not reveal any follow up questioning of this particular

juror on that issue. So that's suggest that he did not disclose it on his questionnaire, or that he did disclose it but the lawyers didn't catch it. But the first order of business is going to be determining how he answered that question on the questionnaire, and that's important for the next step of the inquiry because the court is going to inquire into his possible motives for not disclosing it, assuming for present purposes that he did not

disclose it. If the court were to determine that he did not disclose it deliberately in order to get on the jury, then that would be more indicative of bias. Then if he, as he has suggested, perhaps inadvertently to

disclose it because he was rushing through the questionnaire. And there are cases where courts have talked about the significance of a juror's motivations for failing to disclose information that seems relevant to determining bias, because if it seems that the juror was determined or trying to get onto the jury, that is often indicative in the courts of view of harboring some bias and wanting to get onto the jury

in order to render a verdict against the defendant. Will the judge look into what happened in the jury room. That's one of the more interesting aspects of this new turn in the case, which is that although the jurors has suggested in their accounts to the media that they brought their experiences into the jury room with them and used them to persuade other jurors who may have been

initially skeptical of the victims witnesses credibility. The judge is not going to consider testimony or other evidence about the jury deliberation in making her decision about whether or not to grant a new trial. That's because there's a federal rule of evidence that expressly prohibits a judge from considering testimony or an affidavit from a juror about conduct or

statements that occurred during the jury's deliberation. That's a rule of long standing precedent um, and it's designed to protect the privacy of jury deliberations. The concern is that if jurors are not assured of the privacy of their deliberation, that they will be less candid. Courts have been willing to accept the fact that this rule may result in occasional injustice, but they have said that they do not think that the jury system could survive efforts to perfect it.

In this regard. There are a few narrow exceptions to that rule. For example, if a juror were to come forward and say that a juror was offered a bribe over threatened to influence their verdict, the court would hear testimony from a about that. The court also would hear testimony from jurors about their having been exposed to extraneous extrajudicial publicity, for example, in newspaper account about the case.

But other than those narrow exceptions, which involve extraneous external information being brought to bear on the jury, the court will not hear that kind of information from the jurors. The last exception is one that the U. S. Supreme Court carved out in recent years to say that if there is significant evidence of racial animus affecting the jury's deliberations, that the Court of Court should hear is that kind of evidence from a juror. But none of those exceptions

apply in this case. So the defense argues that the new trial should be granted without any kind of evidentiary hearing because there's enough on the record already with what the juror said. But does it seem likely that the judge will hold a hearing. It seems unlikely to me that the court will decide this motion without some further inquiry.

I think that the court is likely to hear from one or both jurors who have come forward so far, and to probe their reasons for not disclosing this information if in fact, it turns out that they did not disclose it on their juror questionnaires, Because again, what the court is going to be trying to determine is whether the jurors harbored any kind of bias that would have provided UH cause for them to have been excused UM from the jury during the warrite or process, the prosecution

requested that the jury be given a court appointed attorney. Does that indicate that there could be possible criminal perjury charges? I wouldn't read that into the government's request UH for the court to a point an attorney. I think that the government was trying to UH streamline UM the process for moving forward UM and to UH and to ask the court to exercise supervisory authority essentially over the process moving forward. Having an attorney appointed to represent the juror

helps that process. And what it also does, incidentally, is now require any attorney who wishes to communicate with that juror, whether it's the prosecutors or the defense attorneys, to go through that attorney, because lawyers are bound by rules of professional conduct that require that if they know a an individual is represented by an attorney in a matter that they must contact that individual through their attorney. What kind

of factors would the judge consider? Will she consider the strength of the evidence against Maxwell, Will she consider having to put the four victims who testified through another trial? Well, motions for a new trial are disfavored precisely because of the interests and finality in judgments once they've been rendered, and those interests include not having to put victims and

witnesses through another trial. But that said, the legal determination that the court will need to make is whether or not the record establishes that these jurors um were sufficiently unbiased um that they should we were appropriately seated as

jurors in this case. So I think the court is likely to hear from these jurors UM about their reasons for not disclosing this information UM if in fact um they failed to disclose it, and also um their own views about the case when they went to the case UM. And there are precedents for courts making such inquiries of jurors um to inquire into why they failed to make

disclosures UM and what the jurors responses reveal about their biases. So, for example, there was a case a death penalty case in Massachusetts, tried a number of years ago, where it emerged, after the defendant was sentenced to death, that one of the jurors failed to disclose that she herself had been the victim of a horrific violent crime, even though all potential jurors were asked about that, and when she was questioned about it in a subsequent post trial hearing, she

said that it was so traumatic for her to talk about that experience that she simply chose not to because it was so shameful and difficult for her to discuss that. And so even though the court found in that case that she harbored no specific bias towards that defendant, the court found that her reason for not disclosing it mainly that it was so traumatic for her to discuss those experiences.

UM was the kind of information that would have caused the court to excuse her for cause UM initially had the court known about it, because it was clearly still so raw and emotional for that juror, such that the court would have been concerned about the juror's ability to decide the present case UM fairly and based solely on

the evidence. And so I think that the judge if the court makes an inquiry of these jurors, is going to want to know a bit about their own experience with abuse to sort of the nature and circumstances of it.

At the court will also inquire again about why they failed to disclose it if they did um and whether or not, taking all the facts and circumstances together, including the witnesses demeanor, at any such hearing, whether the court concludes that the jurors ultimately harbored some bias towards Maxwell and wanted to get on this jury, or there was anything about their own experiences with the use that would have caused them to be unable to be fair and

impartial in this case. Was the conviction in that case in the death penalty case reversed, Yes, the defendant had fled guilty to the crime. The only thing put before the jury in that case was whether the defendant should be sentenced to death um, and the court did set aside that death sentence on account of the juror's partiality. A lot of experts are saying that this revelation, this is so serious that it's likely that the judge is going to reverse Maxwell's conviction. Do you agree with that.

I think it's too soon to predict how the court will rule here. I think we need to take things one step at a time, and as I said a moment ago, the first order of business is to find those juror questionnaires and to see what the juror said, and then to follow up with the jurors. Um. I think it's very hard to say that this is a per se case for Fertile, even if the jurors did not disclose this information. I think we're several steps away from the court having all the information it needs to

make a decision. Does this say something about those lengthy questionnaires that are sent out to pools of jurors. This juror said, you know, he just went through it really quickly, and then they based their questions on whether or not I think the judge individually questioned each juror who said they were the victim of sex abuse. I can understand a jew or just going really fast through question after question after question. I wonder how useful they really are.

So it's an interesting question about whether it is certain points they're diminishing returns to a lengthy jury questionnaire, and whether in fact it can be uh uh counter productive to have so many questions that there is an increased risk that the jurors will not pay attention to the

most significant questions. In this particular case, whether a potential juror had a personal experience or whether somebody close to them had an experience with sexual abuse seems to be very important information that the parties would want to find out about each potential juror, and so without having looked at all of the other questions carefully to decide what might have been discarded. UM. I do think as a general matter, it is perhaps a good reminder that sometimes

less is more. If if, if, if, if the judge does reverse the conviction. Is there any doubt that the prosecutors will have to retry her given the seriousness of the allegations and the notoriety of the case, the prosecutors will have to make that evaluation in light of a number of considerations. UM. But I would be very surprised if they would not retry her. Um, given the seriousness of the charges here. But that said, uh, we are way way way too early, I think to be making

predictions about what's going to happen. Thanks Jessica, that's professor Jessica Roth of Cordoza Law School. The U s. Supreme Court struggle with the question of whether immigrants who entered the country illegally and have sought to avoid deportation on humanitarian grounds must be given a bond hearing after being

in detention for six months. The justices are confronting how to handle a precedent that lower courts have interpreted to require those bond hearings for certain immigrants after six months attention. Joining me is Leon Fresco, a partner at Hollandon Knight Leon. How long can immigrants who entered the country illegally be kept in detention without a bond hearing? So this depends you because there are many different contexts in which four

nationals are detained. And so the very first case, that's the seminal case that discussed this issue, is the case called Zavidas, where it was a Lithuanian person who had had an order of removal to Lithuania, but at the time that he was born, he was born in the Soviet Union. He was not born there was no Lithuania at that time any more, and so when it came time to deport him back to Lithuania. Lithuania said, I

don't know this person. This is a Soviet Union citizen, and the Soviet Union doesn't exist anymore, so we're not taking them. And so then the US government was was faced with two equally lousy scenarios. Detained Zavidas for the rest of his life or let him out. And so the court was presented with that case in the nineties, and the court said, even though the statute doesn't ever use either a hundred and eighty days or six months,

it doesn't have any of that in it. It said, it's not significantly likely that you will be removed in the foreseeable future. If you've already been detained six months, we're gonna let you have a bomb hearing. We're gonna get you a chance to be released because we're not gonna keep you in detention forever. So that's what's called

a post removal case. In the meantime, after that was decided, people then asked, well, what about not post removal, but if you're detained in the middle of your proceedings, so we haven't decided whether the court you or not, but you're detained in these proceedings are taking too long so people said that should be six months as well, and a lot of the lower courts agreed, But by the time discussed to the Supreme Court in the Trump administration

and the composition of the courts had changed, the courts disagreed and said, we're not gonna set a presumptive time period for people who are going through proceedings. Whatever long it takes, it takes, and if it takes way, way, way, way way way too long, you can make what's called an individual as applied challenge, saying, hey, I've been detained two years, three years, and my proceedings are going nowhere.

Let me out. So that's the difference between a person who finished their proceedings and a person who's in the middle of their proceedings. So today's cases, we're tricky because they are people who are in the middle of their proceedings.

But because of an earlier Supreme Court case from last week, we said that these people are not considered to be in detention during their proceedings, but are considered to be post removal detention because these are people who have already been deported and have come back into the United States

and we're trying to deport them again. But they're saying no, no, no, no, no, something happened in the middle of the time for when you deported me, so when I came back that it would be very dangerous for me for you to deport me. The please, please, please don't do it for those people, because the post removal cases six months. Should the courts make these people also have a six month the tension period because you can't interpret the same set you differently

for two different kinds of people. So that's the argument they're making, and what's the federal government's position. The federal government is saying, yes, if you have a point beheaded bureaucratic, you have to interpret the same set you the same way for everybody. Yes, then it would be six months.

But then these people who have been deported and who are returning actually will get better treatment than people who are coming for the first time and are being detained, because the courts of decide is that those people don't get a six months the tension period. And these aren't like sasa It people where we know we can't support them ever because there is no Lithuania is not going to accept them, and no other countries gonna accept them. These people can be deported, but we just have to

finish their proceeding. And so that's the obstacle to deportation. It isn't that no country will take them. And so that's the arguments the government was making here. And the Supreme Court was very gingerly trying to figure all of this out during your argument and trying to understand all these different permutations, and you could tell they didn't have it exactly all understood by their questioning what were the

main concerns you heard the justices discuss. So I think the main concerns from the what you would call them more progressive justices is they were really focused on the practical. How long is it gonna take for this human being and others like them to have their hearing, And if it's gonna take one year, two years, three years, years, why should they be allowed to be in detention all of this time? And when would be the time that

would be appropriate. And so this is where the Council for the Advocates were saying, Okay, well though, that's why it should be six months, and after six months you should get a right to have bonds and be bonded out if you're not a danger to society and if you're not a flight risk, and the government was saying no, no, no no, no, no, you can't create a six months time train for this because this isn't something where we know that the person is never going to be deported.

In fact, most of these people are going to be deported, and if we can keep them detained, we can finish these cases more quickly because these cases would go and what's called the detained docket, which is a faster immigration court docket than the non detained docket, so that these time periods are hard to analyze because the reason we don't have these folks in the detained docket is because

we don't know if we can detain them. But once you give us authority to do it, we will put them into detained docket and their cases will go much faster. So that's from the progressive wing. That was their concern is they seem to say, look, we want to apply to six months standard if you're not gonna give us some guarantees about how long this is gonna take, because this could take forever and it's not fair to keep people to say for so long just for an immigration thing.

They didn't commit any crime of any time, So that's number one. On the conservative side, they seem to have a bunch of different possibilities. Number one might be actually overruling the Zavida's case in the first place, which the government,

the Biden administration, doesn't want. This would be a huge nightmare for the Biden administration if by defending this particular kind of detention you ended up with actually overruling Xavidas, which would then allow the government to definitely detain anybody, even people it knew it couldn't deport. So that's a possibility, and that's out there as a as a possibility. I don't know if the court will go that far. Also, Justice Cony Barrett seems to have like a compromise position.

She was trying the carve out, which is where I think if you said, Leon, you have to come up with a prediction, I think it could end up here, which is where the court would say, look, we're not gonna say six months, but come to us with individual claims if you think that there's an undue delay, and we will do this on a case by case basis. And then the court was trying to figure out criteria of what it could use for such an analysis, but

it didn't really get there. But I could see the court over the next six months trying to hammer out something like that where it could provide guidance on what you could do on a case by case basis, but not give a six month presumption that the lower courts,

the immigration courts correct. That will make many, many, many individual cases that's to get filed, as opposed to having a bright line rule where after six months the government knows it has to release people who are not like risks and who are not dangerous, and so all of those people will need to have access to council and will need to them be able to file a lawsuit, which needs the leader to four or somebody else will have to put up that money, or they have to

file what's called an informed of operas, which is a very long, convoluted process to convince the court that you don't have any money. So all of that will have to be done, and then you'll have to go through at least hundred and twenty days of additional litigation while you're in detention for you to get out and have a bond hearing. So that would be the outcome of as applied standard as opposed to setting a bright line of look after six months, you have to lead people out.

But I mean, either of those are possibilities, and there's the remote possibility they may just say nobody anymore gets a six months presumption, not even the original people who were people you just couldn't deport because no country would take them. None of them will get a six months presumption. So we'll see all three of those possibilities are still alive.

But the third would mean that they would overrule one of their precedents, correct, which is something that is going to come up a couple of times this term, or at least in the abortion cases. And one wonders if they want to be overruling precedent so frequently correct. I mean,

it would be a monumental thing. Who overturns Zabdas. But to the extent that this set of justice has says, look, I don't see how we can keep zabdas when the entire point of Zabdas is that it puts a six month standard where literally, if you put a control f search for the days or six months, you don't see it anywhere in the statutes. How can we as a

conservative textual cord keep this decision. So they might say that, or they might say, look, this would be very dangerous to let the government indefinitely detain people we know can't be deported. Are we really going to give immigrants a life sentence and jail for just the fact that a government won't take them back. That seems kind of harsh, And so the question is, then what can we do?

Can we create some other carve outs that differentiate the kinds of cases where a person can't be deported because the country won't take them, and the kinds of cases where a person can't be deported because even though we've deported them already, they've come back and are in the middle of a hearing to decide if they get this special relief just for a very narrow thing, that they're gonna be tortured if they go back to the country where we deported them too, because of something that happened

in the meantime after we deported them. And so they might make that carve out and say that that carve out matters, which would be odd because usually a fatue means the same thing for everybody. But they may say, no, it doesn't which would be kind of poopy, or they may say it does mean this for everybody, but nevertheless, we're we're just gonna say you still have to have

and as applied talents for every single purpose. So all of these things are possible and we'll just have to see how they come up with the final answer there. So how many people are we talking about? How many people with this case the decisionless case impact well, so

it could end up being thousands of people. And it also depends from the standpoint of if there is a six month right, then potentially many more people come back who've been deported and they try to make these claims knowing that they can get out and say it months, as opposed to if people think they're gonna be indefinitely detained. Perhaps some people don't come back because they say, oh, Holy Mother, I don't want to go back to America. If I get caught, I'll be put in the pensions

for three or four years. And so the number could change depending eithern on what the relief is. So, um do they discuss the class action aspect of this right, So there's there's also such a story language about whether you can get relief on these kinds of cases based on a class case or whether these need to be done on a case by case basis. And so in the cases that had to do with tending immigration proceedings, the Supreme Court that said you can't tile these as

a class. They all need to be done individually. And so that's one of the issues that's going to be determined here is can you do this as a class because they all have one common legal claim, or is this gonna have to be something where you're gonna to show that the detention was unreasonable given the circumstances in your case, that the government was delaying your case and

that's why you should be let out. The Biden administration has gotten some blowback because of its positions and certain immigration issues that it hasn't been as progressive as immigration advocates want. Are they getting criticized for the position in this case where they're just standing in the shoes of the Trump administration. I think in general the advocates are

very disappointed. And this has been a theme with both the Obama administration and the Biden administration that in both administrations they have defended the statutory text the way Congress wrote it, which if you appear to read it at faith value, says that the detention needs to go on, and it needs to be mandatory, and it needs to be the length of the proceedings. That's the way Congress wrote those statutes. Now, the question is is that fair?

Does that make any sense? Is if you mean? All of those are logical questions, But both the Obama administration and the Biden administration both made the calculation that at the end, the statute is written the way it's written, and unless we're prepared to say that that statute is unconstitutional, we have to defend it the way it's written. And from neither the Biden administration nor the Obama administrations ever

decided to say that these statutes were unconstitutional. And so they've defended it, and the advocates I've given them quite a lot of plock for doing it. But I mean, once you start saying immigration detention statutes are unconstitutional, then what are you doing? I mean, at that point that becomes a major problem, because what are you supposed to do to control unfettered immigration into the United States? And

so this this is the problem. But you know, to the extensive people want to criticize the Biden administration for a bunch of different things. The one thing you have to say and give them the credits for his looks. They are calling balls and strikes on a bunch of things, and this is one example of them where they're not. This is clearly not a politicized Justice department, and it's a justice department that trying to make its way through reading a statute the way you would do it regardless

of the president. Thanks Leon, that's Leon Fresco of hollanden Knight. I'm June Crosson. You're listening to Bloomberg