“Jeffrey Epstein didn’t kill himself” has become a popular catchphrase. Will we say the same about Ghislaine Maxwell? That undercurrent is running behind events this week, when Maxwell is scheduled to have a bail hearing. Federal prosecutors claim Epstein’s confidant and accused co-conspirator is a flight risk who should be held without bail. Ms. Maxwell says she’s been right here in the U.S., where she will remain to fight the charges against her. Since bail is not to punish, and the federal authorities’ own record on treating prisoners is abominable, it’s hard to see how her continued jailing is just or permitted. All criminal defendants in the United States enjoy the presumption of innocence, and that includes those called monsters by the press and Netflix presentations.
Federal Prosecutors Playing Games
Are federal prosecutors playing games with the court? They claim in filings to support a decision granting no bail that Ms. Maxwell travels internationally extensively, including 15 trips in the last three years. The attorneys, from the maverick U.S. Attorney’s office in the Southern District of New York, don’t mention that not a single one of those trips happened since Jeffrey Epstein’s death in August of 2019.
Highlighting 15 trips in three years is certainly a more powerful argument than that she traveled all the time internationally, except for the last year, when these charges had been brewing, and when it may have benefited her to flee this jurisdiction. There’s a way to present the facts in a light most favorable to your position, and then there is this type of presentation, which one could imagine the court will find less illuminating than obfuscating. The games continue with Maxwell’s “hiding.”
Hiding – But From Whom?
Prosecutors claim Ghislaine Maxwell “made intentional efforts to avoid detection, including moving locations at least twice, switching her primary phone number and email address, and ordering packages for delivery with a different person listed on the shipping label.” Keep in mind, the prosecutors make no mention of what became a feverish international media hunt for Maxwell’s whereabouts after Epstein’s “suicide.” Is that commensurate with their duty to be forthright with the court? It’s hard to justify given what her defense lawyers claim.
There is a distinction between legal arguments and factual claims. While attorneys may advance any legal argument to a court, provided it is made in good faith, they may not misrepresent facts. Maxwell’s attorneys point out that through her lawyers, she has been in regular contact with federal prosecutors from July 7, 2019, until she was arrested. It’s most unlikely her attorney falsely asserted that to the court in a memorandum on bail, and if true, it makes the prosecution claim seem all the more deceitful.
Her lawyers say she would have surrendered herself to authorities had they informed her of an arrest warrant. Instead, they claim the raid to arrest her, complete with door-smashing police, was executed “without warning on the day before the July 4th holiday, thus ensuring that she would be in federal custody on the one-year anniversary of Epstein’s arrest.”
Should She Get Bail?
Everybody who is charged with a crime should get bail unless there is a good reason for them not to. Stated colloquially, that’s the law and policy around bail in the federal system. Ms. Maxwell is a wealthy woman who knows how to travel internationally. That much is fully established and undisputed. It doesn’t make her ineligible for bail, however. As her lawyers say:
“Lacking any evidence required under the governing standard that Ms. Maxwell presents an ‘actual risk of flight,’ the government’s flight risk argument is reduced to the following: Ms. Maxwell is a woman of means who has foreign citizenship and has traveled internationally in the past, and who now faces serious charges.”
Federal prosecutors include information that she has French and U.K passports as evidence of flight risk. Surrender of any and all passports and a promise not to apply for others is often a required prerequisite for bail, though, and one with which the defense would agree. Why go on about them then? It all smacks of throwing anything at the wall hoping something sticks.
Take your pick – Jeffrey Epstein killed himself while on suicide watch in federal custody, or Jeffrey Epstein was murdered to ensure his silence while in federal custody. Either one presents a problem those prosecuting attorneys do not address. Add COVID-19, which is widespread throughout the very facility in which Maxwell is housed, and the reasons to require her ongoing custody become fewer and fewer.
Prosecutors can’t make hay going after Epstein any more, so Maxwell is the next best thing. If the worst allegations against her are true, she is heinous, and she should be tried and convicted for those acts. Authorities should not be able to imprison her without proving beyond a reasonable doubt that she did, however. The court should consider what her attorneys call the most critical fact, “Ghislaine Maxwell is not Jeffrey Epstein.”
Read more from Scott D. Cosenza.