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  • Joseph A. Del Russo, JD

Professor Del Russo Explains: “Accomplice Liability”.

Updated: Jul 7, 2022

During the Ghislaine Maxwell trial it appeared the jury was struggling during deliberations. Among the issues was the legal concept of “accomplice liability”. Maxwell was ultimately convicted, and although there were concerns about the integrity of the conviction in my last blog post about the case after her conviction, despite my justifiable concern, her conviction was affirmed. We shall see whether that jury misconduct survives appellate review. In any event here is a discussion of what I like to describe as “helper“ crimes.

This begs the question. Why are the jurors struggling in the United States of America versus Ghislaine Maxwell? 

Certainly Epstein’s notorious sexual exploitation, the reported political skulduggery of his 2008 Palm Beach prosecution for sexual abuse, and his dramatic demise on Rikers Island New York City after a 2019 arrest, make this case, perhaps even too salacious for Hollywood treatment by the most prurient producer. An evil billionaire, privilege from the highest levels of society, exploited children, international jet setting, a possible royal connection to the descendants of Mary Queen of Scots, it has it all.

But is there enough proof? Is it proof “beyond a reasonable doubt”? And what exactly are the charges? I reproduced the indictment in the comments to this post. BTW, these federal indictments are not like anything I’ve ever signed. They are not a basic recitation of the charges. They are jampacked with facts and charts and law and even pictures!

So what are some of the legal issues involving the alleged handmaiden to evil, Epstein’s “girlfriend”, Ghislaine Maxwell, as she is prosecuted in the Southern District of New York.

Well this brings us back to, again— “why might the jury be struggling?”

While I have not been in the court room and only have intermittently reviewed news accounts, I have read the indictment. And Maxwell’s alleged crimes are nearly all “helper”crimes, (“aiding and abetting” or “criminal facilitation” and/or “conspiracy”, i.e. a criminal agreement).

Theses “helper” crimes— where you are not the “principal”, (the person who did the sex crime) are nuanced and legally sophisticated concepts. With proper instructions the actual law may be relatively easy for a juror to follow. Nevertheless, applying the facts can be a dicey proposition.

There are multiple conspiracy counts. The most serious alleges a 4 part crime. That Epstein and Maxwell “conspired” to entice “minors” to “travel” and/or transport them to “engage in sex”.

So there has to be proof that Epstein and Maxwell had an “agreement”. And the agreement requires an element of “travel”, finally this agreement must include as it’s goal— “sexual abuse” of “minors”.

It is probable that the agreement in this case can only be “inferred” by Epstein and Maxwell’s behavior. That is, there is no likely evidence of a document or a conversation or a specific, detailed email.

And while it perfectly OK to convict someone by a “circumstantial agreement”, there must be additional specific evidence “beyond a reasonable doubt” that the agreement included “travel”, and the specific purpose of the travel agreement was so the ‘principal’, Epstein, could have sex with a “minor”. Anything less, on any of these 4 issues, then “not guilty”.

There are other offenses in the indictment that have less legal requirements, but will result in a lesser sentence. It is noteworthy that in a case as notorious as this, the government has a compelling interest to not only prosecute Maxwell to the full extent of the law, but convict her of all charges. Any outcome short of complete conviction, can easily be perceived as a prosecutorial failure.

Prediction—> Conviction. Possibly a mixed verdict. Some counts “guilty”, some “not guilty”.

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