Document 2020-0088

The Honorable Alison J. Nathan February 1, 2022 Page 2 Should the Court determine that a hearing is necessary, however, the Motion should remain sealed until the conclusion of the hearing. With such a vital constitutional interest at stake, it is of paramount importance for the Court to ensure the integrity of any fact-gathering process that may take place so that the inquiry is safeguarded and can uncover the truth of what happened. See 1/26/2022 Order, Dkt. 585 ("[T]he Court must act deliberately and hear from the parties in considering these sealing issues in order to ensure the integrity of any potential inquiry process going forward, should one be ordered.") Above all else, the Court must ensure that the most critical evidence to be elicited at the hearing—namely, the testimony of Juror 50—is not tainted by outside information and influence. Requiring Ms. Maxwell to file her Motion on the public docket in advance of a hearing will do exactly that. It will give Juror 50 an improper preview of information he does not have and should never have, or at the very least should not have at this point in the process. This information includes, among other things: (i) Juror 50's exact responses to the questions on the jury questionnaire, which is not currently public and which he presumably has not had access to since he submitted it to the Court, (ii) data about the responses of other jurors and potential jurors to the jury questionnaire, (iii) the details of the investigative steps the defense has taken and the evidence we have uncovered thus far, (iv) the defense's legal theories and arguments, (v) the defense's view of the underlying facts, and (vi) the scope of the defense's requested discovery in advance of the hearing. The Motion will provide a roadmap of the defense's examination of Juror 50 and will allow him to plan out and tailor his responses, or even potentially spoliate evidence, to paint himself and his conduct in the best light possible. There is also a significant risk that the 2087306.1 DOJ-OGR-00008901 --- PAGE BREAK --- Case:20-0088 Document:6590 Filed 02/08/22 Page:3 of 11 COHEN & GRESSER LLP 800 Third Avenue New York, NY 10022 +1 212 957 7600 phone www.cohengresser.com Christian R. Everdell +1 (212) 957-7600 everdell@cohengresser.com February 1, 2022 BY ECF The Honorable Alison J. Nathan United States District Court Southern District of New York United States Courthouse 40 Foley Square New York, NY 10007 Re: United States v. Ghislaine Maxwell, S2 20 Cr. 330 (AJN) Dear Judge Nathan: We write in response to the Court's order, dated January 26, 2022, requiring the defense to file a letter on the public docket justifying our request to seal Ms. Maxwell's Motion for a New Trial and accompanying exhibits (collectively, the "Motion") under the three-part test in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110 (2d Cir. 2006). Dkt. 585. Introduction The Motion urges the Court to right a grievous wrong that deprived Ms. Maxwell of a fundamental constitutional right - her right to be tried by a fair and impartial jury. Juror 50's responses to the jury questionnaire and questions posed to him during in-person voir dire corrupted the voir dire process and violated Ms. Maxwell's right to a fair trial. As set forth in the Motion, the defense believes that the existing record is clear and more than sufficient for the Court to grant Ms. Maxwell a new trial without the need for further factual development. Should the Court agree with the defense, the Motion could be unsealed and publicly docketed at the same time the Court issues its ruling with no additional delay. 2087306.1 DOJ-OGR-00008900 --- PAGE BREAK --- The Honorable Alison J. Nathan February 1, 2022 Page 3 publicity that will undoubtedly surround the unsealing of the Motion will influence the memories of other potential witnesses. All of this will frustrate the truth-seeking process of any factual inquiry ordered by the Court and jeopardize Ms. Maxwell's one chance to vindicate her right to a fair trial. For the reasons set forth more fully below, Ms. Maxwell's right to a fair trial is a "higher value" and a compelling interest that outweighs the public's qualified right of access to the Motion under both the common law and the First Amendment. The Court should therefore order that the Motion remain temporarily sealed until the Court rules on Ms. Maxwell's Motion or until the conclusion of any hearing ordered by the Court, whichever comes first.1 Applicable Law It is well settled that the public and the press have a qualified right of access to judicial documents filed in criminal and civil proceedings under both the First Amendment and the common law. See Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006); United States v. Silver, No. 15-CR-93 (VEC), 2016 WL 1572993, at *3 (S.D.N.Y. Apr. 14, 2016). "The presumption of access is based on the need for federal courts, although independent— indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice." United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995) ("Amodeo II"). 1 The defense anticipates that the government's response will raise the same issues and will need to be sealed for the same reasons. Accordingly, the defense further requests that that Court order the government to file its response temporarily under seal to give the defense the opportunity to assert its position regarding sealing. 2087306.1 DOJ-OGR-00008902 --- PAGE BREAK --- The Honorable Alison J. Nathan February 1, 2022 Page 4 To determine whether sealing a document is appropriate, the Court must engage in a multi-step process. First, the Court must determine whether the document is a "judicial document" to which a presumption of access would attach. Silver, 2016 WL 1572993, at *3 (citing Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 166, 167 n.15 (2d Cir. 2013)). If it is a "judicial document," the Court must next determine whether the common law right of access or the "more robust" First Amendment right of access applies. Id. (citing Lugosch, 435 F.3d at 120). If the document is subject to the common law right of access, the Court must "determine the weight of the presumption and measure it against competing considerations." Id. (citing United States v. Erie Cty. N.Y., 763 F.3d 235, 241 (2d Cir. 2014)); accord Lugosch, 435 F.3d at 119-20. If the document is subject to the more stringent First Amendment right of access, the Court must determine "by specific, on the-record-findings whether higher values necessitate a narrowly tailored sealing." Id. (cleaned up); accord Lugosch, 435 F.3d at 124. In either case, the Court must also determine whether redaction is "a viable remedy," or whether the document presents "an all or nothing matter." Id. (quoting Amodeo II, 71 F.3d at 1053). Discussion Ms. Maxwell does not dispute that the Motion is a "judicial document" that is subject to a strong presumption of access under both the First Amendment and the common law. See United States v. Smith, 985 F. Supp. 2d 506, 517 (S.D.N.Y. 2013) (citing United States v. Gerena, 869 F.2d 82, 85 (2d Cir. 1989) (right of access under the First Amendment extends to briefs and memoranda filed in connection with post-trial motions in criminal cases)); id. at 518 (presumption 2087306.1 DOJ-OGR-00008903 --- PAGE BREAK --- The Honorable Alison J. Nathan February 1, 2022 Page 5 of access under the common law "is high for documents submitted as part of dispositive-motion practice." (citing Lugosch, 435 F.3d at 123)). But there is no "higher value" or "competing consideration" that is more compelling or more important than protecting Ms. Maxwell's constitutional right to a fair trial. See Silver, 2016 WL 1572993, at *5 (citing United States v. Doe, 63 F.3d 121, 128 (2d Cir. 1995) ("Compelling interests may include the defendant's right to a fair trial.")). Sealing is warranted to protect a defendant's fair trial rights if the Court makes specific findings that "first, there is a substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that [sealing] would prevent, and, second, reasonable alternatives to [sealing] cannot adequately protect the defendant's fair trial rights. Id. at *8 (quoting Press-Enter. Co. v. Superior Court of California for Riverside Cty., 478 U.S. 1, 14 (1986) (citations omitted) ("Press-Enterprise II")). Although cases addressing this point have focused on the need to seal to prevent the prejudicial effects of pretrial publicity on a defendant's right to a fair trial, rather than the effects of post-trial disclosure on a defendant's motion for a new trial, the principle at stake is the same. Ms. Maxwell vigorously asserts that she did not receive a fair trial because of Juror 50's presence on the jury (and potentially the presence of other jurors who were the victims of sexual abuse). Through her Motion, Ms. Maxwell is seeking to vindicate her right to a fair trial and to remedy the structural error that occurred during the voir dire process. Ms. Maxwell's fair trial rights must be protected post-trial just as vigorously as they are pre-trial. To do that, it is necessary to keep the Motion temporarily sealed. 2087306.1 DOJ-OGR-00008904