Trial Readiness and Jury Selection
90 linesUNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x UNITED STATES OF AMERICA, v. 20 CR 330 (AJN) GHISLAINE MAXWELL, Defendant. Jury Trial ------------------------------x New York, N.Y. November 29, 2021 8:40 a.m. Before: HON. ALISON J. NATHAN, District Judge APPEARANCES DAMIAN WILLIAMS United States Attorney for the Southern District of New York BY: MAURENE COMEY ALISON MOE LARA POMERANTZ ANDREW ROHRBACH Assistant United States Attorneys HADDON MORGAN AND FOREMAN Attorneys for Defendant BY: JEFFREY S. PAGLIUCA CHRISTIAN R. EVERDELL LAURA A. MENNINGER -and- BOBBI C. STERNHEIM -and- RENATO STABILE Also Present: Amanda Young, FBI Paul Byrne, NYPD Sunny Drescher, Paralegal, U.S. Attorney's Office Ann Lundberg, Paralegal, Haddon Morgan and Foreman
(Jury not present) THE DEPUTY CLERK: United States v. Ghislaine Maxwell 20 CR 330. Counsel, please state your name for the record, starting with the government.
MS. COMEY: Good morning, your Honor. Maurene Comey, Laura Pomerantz, Alison Moe, and Andrew Rohrbach for the government. Also joining us today is Paralegal Specialist Sunny Drescher, Special Agent Amanda Young of the FBI, and Detective Paul Byrne of the NYPD.
JUDGE NATHAN: Good morning, everyone.
MS. STERNHEIM: Good morning. Bobbi C. Sternheim, with Christian Everdell, Laura Menninger, Jeffrey Pagliuca; joining us also is Renato Stabile, for Ghislaine Maxwell, who is present at counsel table.
JUDGE NATHAN: Good morning, everyone. Thank you. Please be seated. Ms. Comey, is the government prepared to proceed to trial today?
MS. COMEY: Yes, your Honor.
JUDGE NATHAN: Ms. Sternheim?
MS. STERNHEIM: Yes.
JUDGE NATHAN: Thank you. All right. So just first to go over the final stage of jury selection, I think everybody is aware, but make sure we're all on the same page. We're waiting for our 58 remaining jurors to arrive and go to the two courtrooms where they're being held. Once we have everyone -- hopefully we'll have everyone, but once we everyone, the live feed into those two rooms will come on, I'll say good morning to everyone, I'll ask the two questions that we've discussed, whether they've read or heard anything, and whether there's any reason they can't be fair and impartial, and that they should raise their hands if the answer to either of those questions is yes. I believe both teams will have someone in each of the courtrooms; and, of course, we'll have courthouse staff in the courtrooms. And we'll get indication if there are any hands raised. If there are, we'll bring them in one at a time.
I'll have them in the witness box and inquire as to what the basis for the yes response is, and we'll deal with that as we would any other jury selection issues. Once we've resolved that, any of those issues with respect to the first 40 people in ascending order, my plan is to have all of those 40 in the same holding courtroom. And then counsel will exercise their peremptories. I have the board with the numbers of the jurors which will be finalized. We'll come to sidebar and alternate strikes for your peremptories. We'll do first with respect to Jurors 1 through 28, the primary juror, ten and six alternating, and then three each with respect to 29 through 40 for the alternates, three each alternating. Once we have our jury selected, my intention is to go back to the live feed to that courtroom, read the numbers of the selected jurors, and then have Ms.
Williams escort those jurors to the jury room to put down their things and gather their contact information and the like, rest room and the like. At that point I'll ask counsel if there's any reason why the remaining jurors cannot be dismissed, take any issues, dismiss the jurors who are not selected. And then we'll bring in the jury, and we'll swear them in. Then we'll commence with preliminary instructions that everybody has seen, and opening statements. We will seat the jurors taking account of any unvaccinated jurors, because the district has different distancing rules for unvaccinated jurors -- unvaccinated individuals, if we do have any on the jury. What we'll do is once they're seated, we'll produce a list by where they're seated so that you know which juror is seated where. And that is what I have. Any questions or requests or otherwise?
MS. COMEY: Not from the government, your Honor. Thank you.
MS. STERNHEIM: I just have one sort of a protocol question. During the prior proceedings, the Court permitted only one counsel to approach for sidebar. Is that going to be the routine during trial or may we all participate?
JUDGE NATHAN: I think it's just a distancing question to make sure that we have sufficient space. So maybe what we can do is have kind of a first layer of lawyers -- a first layer of lawyers and then --
MS. STERNHEIM: A backup team.
JUDGE NATHAN: -- a backup team behind them so that we're keeping everyone distances, as is required.
MS. STERNHEIM: Thank you. I think Mr. Everdell has an issue.
MR. EVERDELL: Yes. Thank you, your Honor. Just a matter of choreography. Assuming we do get to witnesses today, pursuant to the Court's instructions, we have a binder of materials for the witness. Once cross begins, we'll need to take just a brief break to deliver the binder to the witness box. And I believe for the first witness we may have some manila folders to hand out to the jurors which we would instruct them not to look at until they are instructed to do.
JUDGE NATHAN: Okay. And does this overlap with the request put in yesterday regarding using video for cross?
MR. EVERDELL: It does, your Honor. We have prepared as if we need binders. We still would like that request to be considered so that we can use electronic, but we have prepared the first couple witnesses with binders.
JUDGE NATHAN: What I was going to say to that request is essentially what you've done, which is that I'm happy to try with the electronic. So, of course, the concern is that where I've -- in particular, where I have -- I suppose there's two concerns. One, where I've allowed a witness to testify under pseudonym, it's possible that the material that you're using would identify the witness. And so because of the way the room is structured with counsel table screens viewable to the gallery, we have to be cautious of that. And your suggestion was to not put it on counsel's screens, but to put it on my screen, the witness screen, my deputy's screen. And what I was going to say to that is I'm happy to try that, so long as it's completely clear to the government what it is that the witness is looking at and what you're directing the witness to so that there's no discrepancy between what the government is aware that you're showing the witness and what you're showing the witness. So I'm happy to try that so long as you've got paper to enable if that were to fail or if, in any event, so that the government can have precisely what you're showing the witness, and that you're fully describing on the record any aspect of the document that you're identifying for the witness.
MR. EVERDELL: Totally clear, your Honor. Absolutely. And the government has informed us that they have copies of the 3500 material, of course, and they have copies of their own exhibits; so they won't require us to give them paper copies of that. And I believe the Court does as well. So it's only if we are using to refresh or impeach materials that are not 3500 or the government exhibits, at that point we have paper that we can give to the government and to the Court and the Court's deputy. We're just trying to minimize the amount of paper we have to use.
JUDGE NATHAN: Ms. Comey? Ms. Moe?
MS. MOE: Thank you, your Honor. Just two small points on that. I think Mr. Everdell was mentioning handing out binders to the witness and to the jurors for some of those materials. We just want to note that the government has not yet had an opportunity to review those binders, and so we'd ask for an opportunity to review those before they are handed to the jurors or to the witness. With respect to the second issue of --
JUDGE NATHAN: Well, I guess let's just take the first one. So certainly before anything is shown to the witness or the jurors, the government and I will see the document. I guess the question is to the extent that there's a binder that they may call the jury and the witness's attention to a document at a time, you're requesting to see the full binder in advance?
MS. MOE: That's correct, your Honor. Just to be able to see the binder before it's passed out to jurors, because they'll have a binder full of paper and be flipping through it to turn to exhibits. We just want to have chance to lay eyes on that binder in an abundance of caution. I've note that we have done the same; we've provided defense counsel with a copy of the binders that we plan to hand out.
JUDGE NATHAN: Can you come closer to the mic please.
MS. MOE: Yes, your Honor. I would just note that we've done the same; we've provided defense counsel with a copy of the binders that we intend to pass out to the jurors so they can examine it.
MR. EVERDELL: Your Honor, what we would like to do is follow the practice of this Court that it's been doing forever, as far as I know, which is that before we show anything to the witness, we will show it to the government and we will show it to the Court and the Court's deputy so that they can see what we are showing to the witness. But we do not want to give them a whole binder of cross materials before the cross begins.
JUDGE NATHAN: All right. That's fine. But in that case, we won't place the binder with the jury --
MR. EVERDELL: That's fine.
JUDGE NATHAN: -- in advance.
MR. EVERDELL: That's fine.
JUDGE NATHAN: Okay.
MS. MOE: Thank you, your Honor. The second issue is with respect to the issue of having a screen that the witness sees, but which the government can't see, I think the Court noted there is an issue with the government not being able to follow what the witness is being shown. Our concern in particular is that in a letter defense counsel filed, I think they previewed that they plan to sort of highlight some portions of the documents or flag certain portions on the screen. That is very difficult for us to follow without a mirrored screen. And so because we cannot mirror the screens because they are open to the gallery, that is why we proposed using paper for exhibits like that, and so we ask to proceed that way.
JUDGE NATHAN: Here's my thinking: Let's say they show the paper and then they say, Okay, paragraph 2, read the first sentence. If they want to highlight or make larger that first sentence to ease the reading of it for the witness, if they've described fully what they're doing on the screen, and I'm watching it, I think that's okay and it is not that different than doing it orally and with paper. And I would, of course, allow the same for the government, to the extent that there are documents that you may have a witness look at that can't -- if they can't be projected on the counsel table because it might be identifying, I would permit that as well.
MS. MOE: Okay. We're happy to give that a shot, your Honor. We just did want to raise that concern about being able to follow along. We also wanted to ask --
JUDGE NATHAN: And I fully agree with you. And that's why I said we'll give it a shot. They have to be extremely mindful that anything that they're doing or showing the witness has to be fully described on the record and so the government can follow. And if that doesn't work for some reason or I think it's not particularly aiding the review of the evidence, then we'll just do it the old-fashioned way with paper.
MS. MOE: Thank you, your Honor. And finally, we just wanted to know where -- where the screen would be located that those items would be projected to the witness from. So, for example, our paralegal is sitting in the gallery and has a screen there; so we're being careful about what's on her screen to avoid the public seeing that. We just wanted to know where the screen would be in the courtroom that that's being projected from so we can be mindful of that concern.
JUDGE NATHAN: Good question.
MS. STERNHEIM: May I have a moment? Ms. Lundberg will be sitting over there where Ms. Menninger is. The screen will not be viewable to the public.
JUDGE NATHAN: Thank you. All right. Let me check where we are.
(Pause)
JUDGE NATHAN: We still have a few more jurors coming in through the security line. So I'll wait to get an update. We're getting close, but we're not there yet. Counsel, matters to take up?
MS. COMEY: Nothing from the government, your Honor.
MS. STERNHEIM: Your Honor, could you just confirm which rooms are the overflow rooms? Is it the fifth floor up here and the first floor down there?
JUDGE NATHAN: For the jurors you mean?
MS. STERNHEIM: Yes.
JUDGE NATHAN: Yes, it's the fifth floor and the first floor.
MS. STERNHEIM: Thank you very much.
JUDGE NATHAN: That's correct. I believe the information I'm getting is that all the jurors are here, but still some going through the security check, which is good.
MS. STERNHEIM: Judge, I do have one other thing.
JUDGE NATHAN: Just one moment.
MS. STERNHEIM: Sorry.
JUDGE NATHAN: That's okay. Go ahead, Ms. Sternheim.
MS. STERNHEIM: Thank you. I just wanted to confirm that in doing alternating strikes, we would start or the government would start. I'm not sure.
JUDGE NATHAN: I think since the defense has ten, the defense should start.
MS. STERNHEIM: So two/one, one/two, two/one, and till we get to the one and one and one.
JUDGE NATHAN: That's fine with me. Ms. Comey?
MS. COMEY: That's fine with the government, your Honor.
JUDGE NATHAN: Okay. So the defense will do two; government is one; defense, two; government, one.
MS. STERNHEIM: Usually it's one and then two.
JUDGE NATHAN: That's fine.
MS. STERNHEIM: Alternating.
JUDGE NATHAN: That's fine. Or you can -- as you know, I don't do alternating strikes.
MS. STERNHEIM: I know. And I appreciate that --
JUDGE NATHAN: I've given into the requests of both sides to do it this way. You can just alternate one, one, and the defense goes, or you could do what you proposed.
MS. STERNHEIM: I think we're fine with the typical way.
MS. COMEY: Yes, your Honor. The typical way is fine.
JUDGE NATHAN: Okay.
MS. STERNHEIM: Thank you.
JUDGE NATHAN: Actually, I'm reminded, if we have jurors for me to inquire of, we're going to have them sit in the first seat of the jury box and use a handheld mic. There is one issue that the parties briefed over the weekend that you requested to be filed under seal to protect the privacy of the witness who I've permitted to testify under pseudonym. I think I have a few questions just to see where exactly we are on that, and I think we should do that at sidebar to protect the privacy interests of the witness who I have allowed to testify under pseudonym. So we will do that now.
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(In open court)
MS. STERNHEIM: Judge?
JUDGE NATHAN: Just a moment. Yes, Ms. Sternheim.
MS. STERNHEIM: I'm just inquiring if that format was satisfactory to the Court.
JUDGE NATHAN: I think so.
MS. STERNHEIM: Thank you.
JUDGE NATHAN: I think the information I'm getting is that we're missing three jurors who are not yet accounted for on the security line.
(Pause)
JUDGE NATHAN: Current status is we're missing one juror from the fifth floor, and two from the first floor. I think we'll give it five more minutes and then I'll move one juror from the first floor to the fifth floor, unless counsel has concerns with that. And I'm not going to tell you who the juror is yet.
MS. COMEY: Your Honor, we would just ask whether the Court has attempted to call the missing jurors.
JUDGE NATHAN: That's happening now.
MS. COMEY: Thank you, your Honor.
(Pause)
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(Jury present)
JUDGE NATHAN: Jurors, you may take your seats as Ms. Williams directs you. Feel free to be seated as you come in. Everyone may be seated. This will not be your permanent seats; we'll get that squared away during the lunch break. But first, let me say good afternoon to you. It's nice to see you all. Thank you very much for your patience. I appreciate you hanging in there with a little bit of delay, but we're now prepared to get started. I will ask Ms. Williams to swear you in as our jurors. (A jury of 12 and six alternates was impaneled and sworn)