Document 2020-0088630

The Honorable Alison J. Nathan February 1, 2022 Page 6 There is a substantial probability that Ms. Maxwell's fair trial rights will be prejudiced if the Motion is unsealed prior to the resolution of the Motion or prior to the completion of any fact-gathering process or hearing ordered by the Court. As previously discussed, unsealing the Motion will give Juror 50 an improper preview of the defense's position at any factual hearing the Court may order, including the defense's legal theories and arguments and our interpretation of the underlying facts. It will also give Juror 50 access to information that he should not have, including a summary of the additional evidence we have gathered, data about the responses of other jurors and potential jurors to the jury questionnaire, specific defense requests for pre-hearing discovery, and the completed questionnaire itself, which is currently not publicly available and is attached as Exhibit 1 to the Motion.2 If Juror 50 has access to this information in advance of a factual hearing, should the Court order one, there is a substantial risk that he will tailor his answers, influence other witnesses, or even destroy evidence, to protect himself and explain away inconvenient facts. This will frustrate the truth-seeking purpose of the hearing as well as Ms. Maxwell's efforts to vindicate her right to a fair trial. Indeed, defense counsel is effectively functioning as a prosecutor with respect to this issue and the Motion sets forth our theory of the case. Unsealing the Motion would be the equivalent of unsealing a search warrant affidavit to the subjects of a criminal investigation and should be avoided for all the same reasons. Cf. In re Sealed Search Warrants Issued June 4 and 5, 2 Whether Juror 50 should be given access to his completed jury questionnaire in advance of any hearing ordered by the Court—and if so, how far in advance—are questions that need not be resolved now and should be considered separately at a later time. The Motion, including the completed questionnaire, should be sealed in its entirety until the Court decides on a course of action. 2087306.1 DOJ-OGR-00008905 --- PAGE BREAK --- The Honorable Alison J. Nathan February 1, 2022 Page 7 2008, No. 08-M-208 (DRH), 2008 WL 5667021, at *4 (N.D.N.Y. Jul. 14, 2008) (declining to unseal search warrant applications and affidavits because "[i]f such information is disclosed to the subjects of investigations before the institution of charges, there exists a risk that those individuals could conceal or destroy other evidence, influence information and testimony given by others, and otherwise delay and obstruct the investigation.") Judge Caproni's decision in United States v. Silver offers a useful example. In Silver, the government filed under seal a pretrial motion in limine, which described the defendant's extra-marital affairs and sought permission to admit this evidence if the defendant put at issue his ethics or integrity or his character for truthfulness and honesty, among other things. Silver, 2016 WL 1572993, at *1. Judge Caproni heard argument on the motion in a closed proceeding two weeks before trial and ruled that the submissions on this issue would remain under seal until the conclusion of the trial due to the concern that public disclosure of the defendant's extramarital affairs so close to trial would "increase the difficulty of picking a jury" and thereby impact the defendant's right to a fair trial. Id. at *2, *8. Following the defendant's conviction, Judge Caproni gave the parties the opportunity to brief whether the submissions should remain sealed. Id. at *2. She ultimately ruled that the fair trial concerns that led her to temporarily seal the submissions no longer existed and ordered them to be unsealed. Id. at *8. The Court should follow the example of Judge Caproni in Silver. Here, to protect Ms. Maxwell's right to a fair trial, it is necessary to temporarily seal the Motion (and likely any additional submissions on this issue) for a short period of time until the Court rules on the Motion or until any additional fact-finding process ordered by the Court is complete. The Motion and 2087306.1 DOJ-OGR-00008906