(Bloomberg) -- For the lawyers representing Ghislaine Maxwell, the best defense so far has been a scorching attack.
During the first two weeks of her trial, they’ve repeatedly challenged her accusers’ motives and their memories of events that may have occurred decades ago. But with the prosecution expected to rest its case soon, the spotlight now falls on the defense to offer the jury an alternative narrative of her relationship with Jeffrey Epstein and also determine whether she should take the stand herself.
The defense said on Thursday it had not yet decided whether it would put on any witnesses, raising the possibility that the case could move directly to closing arguments as soon as next week. If so, Maxwell’s team can be expected to urge jurors to see their client as a scapegoat for Epstein, who died in 2019 while awaiting his own sex-trafficking trial. Defense lawyer Bobbi Sternheim hit that theme hard in her Nov. 29 opening statement.
“Ever since Eve was tempting Adam with the apple, women have been blamed for the bad behavior of men, and women are often villainized and punished more than the men ever are,” she said.
As is frequently the case in high-profile sex-crimes trials, the defense team is fronted by women: Sternheim, a veteran New York defense lawyer, and Laura Menninger, a onetime Goldman Sachs Group Inc. analyst who has represented Maxwell in civil lawsuits since 2015. Jeffrey Pagliuca, a law partner of Menninger’s at Denver law firm Haddon, Morgan & Foreman, and former Manhattan federal prosecutor Christian Everdell round out the team.
Maxwell, 59, faces as much as 40 years in prison if convicted on the most serious sex-trafficking count. Her accusers say she lured and groomed underage girls for sexual abuse by Epstein, her former boyfriend and employer.
‘I Don’t Recall’
The defense has tried hard to portray the accusers’ testimony as tainted by faulty memories, drug abuse and the millions of dollars they’ve received from Epstein’s estate.
“You have no memory of Ghislaine being present when you claim Epstein engaged in any sexual contact with you, correct?” Menninger questioned “Jane,” a woman who testified last week under a pseudonym that she had been sexually abused by Epstein from the age of 14. A day earlier, Jane told the court that Maxwell was often there, but Menninger pointed out the she’d told investigators in 2019 she didn’t have a specific memory of that.
“I don’t recall,” Jane answered.
Menninger cross-examined one of Maxwell’s accusers, as did Sternheim. Kathryn Miller, a professor at Cardozo Law School, said women were often tasked with challenging the testimony of female sex-abuse victims.
“The confrontational process of cross-examination can be seen by the jury as re-traumatizing or blaming the victim, particularly when defense counsel is male and the victim is female,” Miller said. “Defense teams will often elect to have a female member cross-examine alleged sexual abuse victims to diminish these concerns. Seeing a female team member express doubt about the witness’s story gives the jury permission to do the same.”
Sternheim on Monday challenged “Kate,” the second female accuser to testify, bringing up her past substance abuse issues.
“Your testimony about experiences were during a time when you were abusing drugs?” Sternheim asked. Kate denied her memory had been affected by drugs.
Sternheim “is well-accustomed to representing people who are judged harshly in the media,” said Barbara O’Connor, who was co-counsel with her in the defense of Khaled al-Fawwaz, Osama bin Laden’s U.K. spokesman, who was convicted and and sentenced to life in prison on charges related to the 1998 bombings of two U.S. embassies in Africa.
Menninger, a Stanford Law School graduate who briefly worked at Goldman after college, has a deep familiarity with the claims against Maxwell from the lengthy civil litigation. In depositions in those cases, Menninger could be every bit as aggressive as she’s been on cross-examination.
In 2013, she successfully represented National Hockey League goalie Semyon Varlamov, getting domestic assault charges dropped and also securing him a $126,000 civil judgment on the grounds that his ex-girlfriend fabricated the claim to try to get money from him.
‘Cry on Command?’
Last week, Menninger tried to suggest Jane was up to something similar. Along with asking about the $5 million settlement Jane received from Epstein’s estate, the lawyer pointed out that the witness was a professional actress.
“You can cry on command?” Menninger asked.
“No, not always,” Jane replied.
The suggestion that a witness was acting called to mind similar cross-examinations during the trial of Harvey Weinstein. Maxwell’s team has hired as an expert Elizabeth Loftus, the same prominent psychologist who testified in Weinstein’s trial that the movie mogul’s accusers might have “false memories.”
But the defense must also show Maxwell is not Epstein. That may be a challenge given the long, obviously close and highly lucrative relationship she had with him. Prosecutors showed jurors a series of photos of them together as a couple, and also put former Epstein employees on the stand who said she was his “lady of the house” and “No. 2.” A JPMorgan Chase & Co. banker testified on Monday that Epstein transferred more than $30 million to Maxwell between 1999 and 2007.
Maxwell’s lawyers have proposed calling as a witness forensic psychiatrist Park Dietz, who testified for the prosecution in the cases against would-be presidential assassin John Hinckley Jr. and serial killer Jeffrey Dahmer, to testify that Epstein exuded a “Halo effect” upon Maxwell. According to Dietz, Epstein used his wealth, charisma, and status “to surround himself with people who would serve his needs” while “compartmentalizing” what they knew about his activities.
Prosecutors objected to Dietz’s “Halo effect” testimony. U.S. District Judge Alison Nathan said the psychiatrist couldn’t apply the Halo effect to Epstein because he’d never examined him, but he could tell the jury about the phenomenon’s existence.
“The testimony may be relevant to the jury’s determination of Ms. Maxwell’s knowledge because it could explain how, for example, Ms. Maxwell took actions that resulted in sexual abuse but without any intent or knowledge of that result,” the judge said.
Another witness who could address that issue is Maxwell herself. Though criminal defendants rarely testify in their own defense, there have recently been some high-profile examples. Kyle Rittenhouse made an emotional appearance on the stand and was ultimately acquitted of killing two men during chaotic 2020 riots in Kenosha, Wisconsin. Former Theranos Chief Executive Officer Elizabeth Holmes just finished seven days of testimony in her fraud trial.
Cheryl Bader, a professor at Fordham Law School, said Maxwell faces a difficult choice. “The defense’s main strategy is to discredit prosecution witnesses, put Epstein center stage and draw as little attention to Maxwell as possible,” she said. “To keep with that strategy, they may want to keep her off the stand and not risk that she makes her situation worse on cross-examination.”
A major concern for the defense is how jurors will react to Maxwell. “If the jury thinks Maxwell is trying to manipulate them, they will punish her,” said Bader. “On the other hand, it will be difficult to convince the jury that Maxwell was just another of Epstein’s victims if she doesn’t testify. It’s a tough gamble, but I think it is likely she will stay silent.”
Maxwell also faces two perjury charges for lying under oath in a civil lawsuit and prosecutors could cross-examine her on those if she takes stand.
The case is U.S. v. Maxwell, 20-cr-00330, U.S. District Court, Southern District of New York (Manhattan).
©2021 Bloomberg L.P.