What happens if there is a mistrial in the Ghislaine Maxwell case?

Jurors in Ghislaine Maxwell’s sex abuse trial have been instructed to work throughout the New Year’s weekend amid fears that coronavirus could cause a mistrial.

Judge Alison Nathan cited an "astronomical spike" in the number of coronavirus cases in New York City as she said she asked jurors to work at least an extra hour each day and every day through the week.

A coronavirus outbreak among the 12 jurors and five alternates would jeopardise the weeks-long proceedings and result in Judge Nathan declaring a mistrial. 

There are two likely scenarios in which a mistrial could be declared. The first, as Judge Nathan has alluded to, would be in the event of a Covid-19 outbreak. 

How could Covid-19 produce a mistrial? 

Five alternate jurors sat through the three-week trial as a precautionary measure in case one or more of the 12 jurors were unable to continue serving at any point.

If one juror was unable to continue serving, an alternate juror would be seated, and the jury would have to begin deliberations from scratch.

However, the rapid spread of the highly transmissible Omicron variant in New York has increased the likelihood that multiple jurors could contract the virus, given they will be spending hours in close proximity to each other. 

In the event that several jurors were infected and there were not enough alternates to fill their spots, a mistrial could be declared. 

(L-R) Isabel Maxwell, Christine Maxwell and Kevin Maxwell, the brother and sisters of Ghislaine Maxwell exit the US Federal District Court House on the fifth day of jury deliberations where Ghislaine Maxwell is being tried on sex trafficking charges in New York

Credit: Peter Foley/Shutterstock

What have the prosecution and defence said? 

Laura Menninger, a lawyer for Ms Maxwell, had earlier voiced concern that a request to ask jurors to work later each day "is beginning to sound like urging them to hurry up."

The issue of how forcefully a jury should be encouraged to reach a verdict is often contested by prosecution and defence teams in court. 

Defence lawyers fear that forcing jurys to continue deliberating for longer stretches could pressure them to return a guilty verdict. 

Prosecutors also fear any such measures could offer the defence an issue on which to form an appeal. 

Judge Nathan repeatedly told jurors that the changes to their schedule did not mean that she meant to pressure them "in any way". 

“You should take all the time that you need,” she said. 

What about a hung jury? 

A second scenario in which a mistrial could be declared is if the six men and six women are unable to reach an agreement on the six counts. 

The jury must reach a unanimous decision on any of the six counts facing Ms Maxwell if she is to be convicted. If they fail to reach unanimity on any of the charges, the judge could declare a mistrial.

Ms Maxwell, the daughter of late British media baron Robert Maxwell, is accused of recruiting and grooming four teenage girls to have sexual encounters with the late financier Epstein between 1994 and 2004.

Two of Epstein’s alleged victims said they were as young as 14 when Ms Maxwell allegedly began grooming them for Epstein to abuse.

Prosecutors have argued Ms Maxwell was "the key" to Epstein’s alleged schemes.

The defence claim Ms Maxwell is being used as a scapegoat for her former boyfriend’s crimes after he evaded justice. 

Epstein killed himself in 2019 in a Manhattan jail cell while awaiting trial on sex abuse charges.

Ghislaine Maxwell (L) and Super Model Naomi Campbell (R) at the Rosa Cha Post-Show Celebration party hosted by Super Model Naomi Campbell and NC Connect at Man Ray on September 19, 2002 in New York City

Credit: Mark Mainz/Getty Images

Dr Aref Jabbour, an experienced jury consultant, said: "In cases of this magnitude, if the jury is deliberating that extensively for that amount of time typically it means that they’re having a hard time reaching a unanimous verdict, which they have to in this case.

"We don’t know what’s going on in their minds but they’re not relying only on their memories, they’re making sure that they are dotting every ‘i’ and crossing every ‘t’. And that tends to often favour defendants in the sense that somebody can’t agree, or they need more evidence."

What is the jury split over?  

A string of questions from the 12 jurors to the judge gave an early indication that the group were at an impasse.

Jurors have asked to review the testimony of several witnesses. On Wednesday, they asked for the transcripts of five more witnesses, including defence witnesses for the first time.

The biggest challenge for the six men and six women may not be in deciding whether Ms Maxwell’s four accusers are credible, but whether they are able to grasp the complicated criminal counts under which she is charged.

Judge Nathan spent over an hour-and-half reading some 83 pages of charging instructions to the jury after closing statements.

The six key moments from the Ghislaine Maxwell trial

The jurors have appeared to be concentrating on the accuser known only as "Jane". 

Two of the six charges Ms Maxwell faces relate to Jane alone, which may explain the jury’s attention to detail on her account.

One note the jury sent the judge relating to Jane highlighted the confusion around the charges. 

An expanded jury box, with socially-distanced seating and individual screens for each juror, are seen in a courtroom at a Manhattan federal courthouse, March 12, 2021, in New York

Credit: Mary Altaffer/AP

The note, which consisted of a single sentence, appeared to ask whether Ms Maxwell could be convicted on one of the counts if she “aided in the transportation of Jane’s return flight” from New Mexico, where Jane said she was abused.

Judge Nathan said she found the question “confusing” and would direct the jury to the instructions she had earlier given them.

Ms Maxwell has appeared encouraged by the long deliberations, with her eyes lighting up on Wednesday after the jury requested the transcripts of key defence witnesses.

What happens next? 

In the event of a mistrial Ms Maxwell, 60, faces the possibility of a rerun of the closely-watched case and several more weeks in prison awaiting a verdict if she continues to be refused bail.

Ms Maxwell has been held in a Brooklyn jail since shortly after her arrest in July 2020.

Inside Ghislaine Maxwell’s prison cell

The judge has denied her bail repeatedly, despite her lawyer’s arguments that the pledge of her $22.5 million estate and a willingness to be watched 24 hours a day by armed guards would guarantee her appearance in court.

Judge Nathan has previously said she agreed with the prosecution that the British heiress was the “definition of a flight risk” due to her international connections, high-profile friends and vast hidden wealth.

Dr Jabbour said: "Typically there would be a re-trial with new jurors, and who knows how long that would take considering that this trial has been going on with the amount of publicity and media coverage."

He added that in such a scenario, there was an added layer of "difficulty and complications" to finding another set of jurors. "You know, good luck finding another jury that’s going to not know of [Ms Maxwell], or not formed an opinion [on the case]," he said.

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