Document 407

Case 1:20-cr-00330-PAE Document 407 Filed 11/03/21 Page 1 of 7 LAW OFFICES OF BOBBI C. STERNHEIM 212-243-1100 * Main 917-912-9698 * Cell 888-587-4737 * Fax 225 Broadway, Suite 715 New York, NY 10007 bcsternheim@mac.com November 3, 2021 Honorable Alison J. Nathan United States District Judge United States Courthouse 40 Foley Square New York, NY 10007 Re: United States v. Ghislaine Maxwell S2 20 Cr. 330 (AJN) Dear Judge Nathan: Counsel for Ghislaine Maxwell renew our request that the Court release the names of potential jurors, for attorneys' eyes only, as soon as the written questionnaires are distributed. Based on the Court's statement during the October 21 teleconference, it was counsel's understanding that juror names would be provided to counsel on the Juror Sheet to be inserted in the questionnaire. In responding to the Court's order regarding approval of the video to be played to prospective jurors, the government importuned the Court to deny counsel the opportunity to properly vet jurors at this critical state of the proceeding. Not knowing the names of the potential jurors will prevent the parties from conducting necessary background research on the jurors in advance of voir dire so that they may evaluate potential challenges and strikes. Due to the large number of potential jurors (600), waiting until voir dire to release the names of the jurors will make it virtually impossible for the parties to conduct any meaningful research to uncover issues that may require follow-up questions, lead to additional cause challenges, or enable the parties to exercise their peremptory challenges in an informed manner. Recently, in Sines, et al. v. Kessler, et al., 17-CV-72 (KNM) (W.D. Va.), the civil case brought against the organizers of the Unite the Right rally in Charlottesville, Virginia, the United DOJ-OGR-00006049 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 407 Filed 11/03/21 Page 2 of 7 LAW OFFICES OF BOBBI C. STERNHEIM States District Court for the Western District of Virginia ordered a semi-anonymous jury (jurors were publicly referred to by number only) and released the names of all potential jurors to counsel, plus all pro se defendants (including Richard Spencer and Christopher Cantwell), who are allegedly prominent white supremacists, neo-Nazis, and the leaders of hate groups that planned, promoted, and executed the violent acts in Charlottesville. (See Exhibit A, annexed.) The defendants in Sines included factions of the Ku Klux Klan. The concerns for juror privacy in Sines dwarf any conceivable concerns in this case and Sines is also the subject of extensive ongoing publicity. We submit that withholding the names of 600 jurors until the day of jury selection will deprive Ms. Maxwell of her right to be tried by a fair and impartial jury and is a procedure that would violate due process in this particular case.1 "An impartial jury is one in which all of its members, not just most of them, are free of interest and bias." United States v. Parse, 789 F.3d 83, 111 (2d Cir. 2015). In Parse, a case before Judge Pauley sub nom United States v. Daugerdas, a jury convicted defendant Parse and three of his co-defendants of numerous financial fraud and tax evasion charges. 789 F.3d at 86. After trial, all defendants moved pursuant to Fed.R.Crim.P. 33(a) for a new trial on the ground that one of the jurors, Juror No. 1 (Catherine M. Conrad), "had lied and withheld material information during voir dire and was biased against defendants. Judge Pauley appointed Bobbi C. Sternheim, Esq. to represent the juror and conducted an evidentiary hearing in which the juror was examined, and in a detailed thorough opinion (see United States v. Daugerdas, 867 F.Supp.2d 445 (S.D.N.Y.2012) found it "undisputed that Conrad lied extensively during voir dire and concealed important information about her background" (id. at 451), her level of education, place of residence, criminal history, and other matters. Parse, 789 F.3d at 87-90. 1 We are unaware of any other recent high-profile case in which a written juror questionnaire was used and the Court withheld the names of the jurors from counsel following the completion of the questionnaires. 2 DOJ-OGR-00006050 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 407 Filed 11/03/21 Page 3 of 7 LAW OFFICES OF BOBBI C. STERNHEIM Judge Pauley granted a motion for a new trial as to Parse's three co-defendants but held that Parse had waived his right to an impartial jury because his attorneys had sat on background research collected before and during trial that suggested Conrad's voir dire answers were false. Id. at 101. On appeal, the Second Circuit "had no difficulty with the ruling of the district court in the present case that the jury empaneled to hear the case against these defendants was not an impartial jury." Id. at 111. Moreover, the Second Circuit reversed Judge Pauley's ruling that Parse had waived his right to an impartial jury, and vacated Parse's conviction. Id. at 118. The result in Parse was that a three-month trial, with 41 witnesses and some 1,300 exhibits, was undone by the falschoods of one juror during voir dire—falschoods that could have been uncovered by thorough background research and prompt action by the parties. Numerous bar associations have recognized that trial counsel is expected to conduct internet research on potential jurors. Some bar associations have opined that professional standards of competence and diligence may require such research. For example, just weeks after Judge Pauley conducted a post-conviction evidentiary hearing in Parse, the New York City Bar Association stated the following in Formal Opinion 2012-2: Just as the internet and social media appear to facilitate juror misconduct, the same tools have expanded an attorney's ability to conduct research on potential and sitting jurors, and clients now often expect that attorneys will conduct such research. Indeed, standards of competence and diligence may require doing everything reasonably possible to learn about the jurors who will sit in judgment on a case. Similarly, in 2014, the American Bar Association recognized the "strong public interest in identifying jurors who might be tainted by improper bias or prejudice," and therefore opined that it was proper for counsel to research "a juror's or potential juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial. . . ." See Standing Committee on Ethics and Professional Responsibility, Formal Op. 466 at 1-2, Am. Bar 3 DOJ-OGR-00006051 --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 407 Filed 11/03/21 Page 4 of 7 LAW OFFICES OF BOBBI C. STERNHEIM Assn. (2014); see also New York State Bar Association, Dec. 8, 2015 Report of the Social Media Committee of the Commercial and Federal Litigation Section, at 15 ("[I]t is not only permissible for trial counsel to conduct Internet research on prospective jurors, but [] it may even be expected.") Other courts have acknowledged that using the internet to conduct background research on prospective jurors is a "rudimentary practice" during jury selection. United States v. Stone, No. 19-0018 (ABJ), 2020 U.S. Dist. LEXIS 67359, at *93 (D.D.C. Apr. 16, 2020); see also Carino v. Muenzen, No. A-5491-08T1, 2010 N.J. Super. Unpub. LEXIS 2154, at *27 (Super. Ct. App. Div. Aug. 30, 2010) (trial judge erred in preventing counsel from using the internet during jury selection). It is so routine that a party who fails to uncover disqualifying information about a potential juror, despite a reasonable opportunity to do so, risks waiving the right to use that information in post-conviction proceedings. Stone at *90 (denying motion to vacate conviction and for a new trial because, inter alia, "the defense could have discovered the [foreperson's social media] posts as early as September 12, 2019, the day counsel received access to the completed juror questionnaires, including the foreperson's, which had her name printed legibly on the signature page.") Having additional time to conduct background research on each of the venirepersons is the best way to ensure a fair and impartial jury. Balancing the need to protect juror privacy against Ms. Maxwell's right to a fair and impartial jury weighs in favor of releasing the names of potential jurors to counsel upon the completion of their written questionnaires, not at voir dire. Respectfully submitted, /s/ BOBBI C. STERNHEIM Enc. cc: All counsel of record --- PAGE BREAK --- Case 1:20-cr-00330-PAE Document 407 Filed 11/03/21 Page 5 of 7 EXHIBIT A DOJ-OGR-00006053