Fearing Mistrial Because of Virus, Maxwell Judge Extends Jury’s Hours

The rapid spread of the Omicron variant could put the sex-trafficking trial of Ghislaine Maxwell in jeopardy, the judge overseeing the case said on Tuesday, as the city’s growing Covid case count put pressure on the jury’s deliberations.

As the jury completed its fourth full day of deliberations in Federal District Court in Manhattan, the judge, Alison J. Nathan, said she feared jurors and trial participants might become infected and forced to quarantine, and raised the specter of a mistrial.

“We are, very simply, at a different place regarding the pandemic than we were only one week ago,” Judge Nathan said, speaking outside the jury’s presence as she cited what she called “an astronomical spike” in cases. She said later that she had extended the jury’s hours to 6 p.m. and would also have jurors continue deliberations through the holiday weekend until they reach a verdict.

“Put simply,” she said, “I conclude that proceeding this way is the best chance to both give the jury as much time as they need and to avoid a mistrial as a result of the Omicron variant.”

Close to 5 p.m., the jury sent the judge a note, saying, “Our deliberations are moving along and we are making progress.”

Addressing the jurors at the end of the day, Judge Nathan said she would ask them to work through the rest of the week — including Thursday and Friday, which had been scheduled as days off. She did not tell the jurors of her plan to have them work through the weekend.

The note was one of about a dozen the jurors have sent throughout their deliberations seeking legal guidance, testimony and office supplies. Until Tuesday afternoon, they had given no clear indication of how their discussions were progressing.

The trial of Ms. Maxwell, who has been charged with recruiting and grooming underage girls for sexual abuse by Jeffrey Epstein, included three weeks of testimony by two dozen government witnesses and nine defense witnesses. The jury began its deliberations late on Dec. 20, but because jurors were given days off for the holiday, the panel completed only three full days of deliberations by the end of Monday of this week.

Court officials already have signaled their concerns about the variant, announcing upgraded Covid precautions on Monday, including rules that anyone in the court must wear a high-quality respirator mask, such as an N95.

The issue of how forcefully a jury should be encouraged to reach a verdict is always a delicate matter. Defense lawyers argue that unduly rushing a jury could pressure it to return a guilty verdict, while prosecutors do not want to provide the defense an issue on which to base an appeal.

As she laid out the expanded schedule to the jury on Tuesday, Judge Nathan repeated verbatim a phrase she said Monday: “Of course, by this, I don’t mean to pressure you in any way. You should take all the time that you need.”

The discussion about the potential impact of the coronavirus on the trial came Tuesday as the judge and the parties continued to grapple with a perplexing jury note received Monday.

Most of the notes, which have been read aloud by the judge, have sought transcripts of a particular witness’s testimony or clarification of legal issues — the definition of “enticement,” for example. Others have pertained to scheduling or logistics — a request for an early lunch or departure or that a piece of testimony be presented in a binder. On Monday, the jurors also asked for a collection of study aids: multicolored Post-it notes, highlighters and a “white paperboard.”

While the notes bore no indication of discord or an impasse on the panel, the communication that arrived on Monday afternoon spurred a debate over precisely what the jurors were asking.

The note consisted of a single sentence of about 40 words that pertained to an accuser known as Jane. It 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.

“We find it confusing,” Alison Moe, an assistant U.S. attorney, said to Judge Nathan.

“I don’t find this note confusing,” a defense lawyer, Christian Everdell, responded a few minutes later.

“Well, I find it confusing,” Judge Nathan declared, saying she would direct the jury to the instructions she had earlier given them.

The instructions — also known as the jury charge — run 80 pages for Ms. Maxwell’s case, and were the result of days of behind-the-scenes wrangling between the two parties about how to frame certain legal standards and what kind of details to include.

Although none of the jurors in Ms. Maxwell’s trial have fallen ill, federal judges in New York City faced a similar challenge when they were struggling to complete trials in March 2020, the early days of the pandemic.

In one case, a federal sex trafficking trial in Brooklyn, jurors decided to work late, reaching a verdict around 10 p.m. In Manhattan, a judge suspended a federal sex-trafficking trial after several days, concluding that jurors would be unable to deliberate safely in the jury room and would be likely to feel too anxious, rushed and distracted about infection to focus on reaching a verdict.

“It is untenable to continue with this trial now or at any time as long as the current public health crisis persists,” the judge, Paul A. Engelmayer, said at the time.

Judge Nathan herself confronted such an issue in March of 2020, when she allowed an ailing juror to continue participating in jury deliberations remotely from his apartment via FaceTime.

“We are under extraordinary circumstances,” the judge said then.

Colin Moynihan contributed reporting.

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