On Tuesday a detention hearing was held in United States District Court for the Southern District of New York to determine whether Ghislaine Maxwell, the former girlfriend of convicted pedophile and proficient suicide practitioner Jeffrey Esptein, would be released on bail pending trial on the six-count indictment returned against her by a federal grand jury.  The Court set the trial date in the case for July 12, 2021.

During a lengthy detention hearing that followed her plea of “not guilty” to the charges, the attorneys for Maxwell urged the Court to grant her release on “terms and conditions of pretrial release” which the defense claimed would assure her attendance at all future court hearings, as well as at trial in July 2021.

Ordinarily, the government would be able to argue for detention of a defendant pending trial if it was able to show that the defendant constituted either a “risk of flight” or a “danger to the community” if they were released on conditions of pretrial release.  In a relatively unusual move, the prosecutors made clear to the Court that they were only asserting “risk of flight” as a basis to detain Maxwell, not on the basis that her release on bail would constitute a “danger to the community.”  This was a tactical decision that allowed the prosecution to avoid being asked to explain why they had opted to only charge Maxwell with crimes that are more than 25 years in the past, given that Epstein himself was charged just last year with much more recent events where Maxwell has been reported to have been implicated.

It was a gamble that paid off, as District Court Judge Alison Nathan ultimately agreed with the prosecution that Maxwell did constitute a “risk of flight” if she were released from custody, and ordered that she be held at the Metropolitan Detention Center pending trial or other disposition in the case.

Not seen or disclosed to the public was a report from the Pretrial Services Officer that would include information which was obtained from the Defendant and her attorneys — as well as information that either was refused to the Pretrial Services Officer or which could not be verified.  The prosecutor did reference at the end of her argument that the Court “should follow” the recommendations of the Pretrial Services Officer and detain Maxwell pending trial.  So, while we don’t know exactly what the Pretrial Services Officers included in the report to Judge Nathan, we do now that the recommendation was that she not be released.

While this is a setback for her defense as of today, I’m certain this will not be the final proceeding on this question.  Because the prosecution has not opted to argue that she is a “danger to the community”, the only question now for the Court to consider is whether the “terms and conditions” offered by the Defendant were sufficient to reasonably assure her appearance in court in the future.  The ruling today has only to do with the “terms and conditions” that were before the Court today.  The defendant can continue to modify the terms and conditions in a way to address the Court’s concerns with the hope that at some point what the defendant is offering will meet the requirements of the Court.  So, while today’s hearing might have involved “A,B, & C”, which the Court found insufficient, that does not prevent Maxwell’s attorneys from returning to the Court next week or the week after and offering “A, B, C, & D”, and have a new hearing on the modified proposal.

As an “objective” matter — without knowing any specifics — I thought the defense was offering a decent combination of “terms and conditions” that might have convinced the judge to release her.  But as the hearing wore on, it was clear that some of the matters offered were not as “compelling” as they might have seemed on the surface — the biggest problem being a lack of detail as to a couple of the most significant terms.

For example, the Defendant’s written papers offered a $5 million unsecured bond — basically a promise to pay $5 million without any security attached to it — that was to be cosigned by as many as five other people.  But the filing by the Defense didn’t specify who those people would be, nor whether they had the personal wealth to make good on a $5 million bond if Maxwell did “flee” rather than face trial.  During the hearing today it seemed from the comments of the prosecutor that the defense still hadn’t identified who the individuals would be.  In that circumstance, the “promise” to have five people co-sign the note rings a bit hollow.

Further, the Defendant’s written papers proposed that the $5 million bond could be secured with real property — meaning that in the event Maxwell failed to appear for trial, the government could forfeit the property as a sanction for her violation of the terms and conditions of release.  But during the hearing, it became clear that the property being offered was real property in Great Britain — not in the United States — and thus there would be all kinds of complications from any effort by the US government trying to foreclose on property in a foreign country.

Finally, the last “miss” had to do with Maxwell’s offer to reside in residence in New York City and be subject to home confinement and electronic monitoring to ensure that she did not leave the residence.  The offer to submit to those conditions in her filing must have caused Pretrial Services to ask for details on what her living arrangements would be.   None of the writings filed by the parties disclosed these details — I’m sure they are reflected in the Report prepared by the Pretrial Services Officer, but the prosecutor stated during the hearing that the government didn’t think living in a luxury hotel suite and dining on room service was much of a sacrifice for Maxwell to offer.

The defense attorney seemed to signal that they had additional and better terms to offer, but they were not yet finalized.  So I expect they will return to Court with the identities of people who are willing to co-sign a “personal bond” for her release.  I also expect that rather than arrange for a luxury hotel suite, they will look for a more modest apartment she can rent in Manhattan.

I think Judge Nathan gave too little consideration to a couple of arguments raised by the defense.  For example, the prosecution argued that because Maxwell is a French citizen having been born there, and because France has in the past refused to extradite French citizens to the US, that fact makes Maxwell a risk of flight.  The defense pointed out that courts have rejected this as a basis to deny release unless the government has evidence of a plan by the defendant to flee to France.  Otherwise, no citizen of France would ever be released on conditions of pretrial release in the US.

Similarly, the fact that Maxwell has substantial personal wealth should not, in and of itself, be a basis to denial release because the argument could be made that no person with substantial personal wealth should ever be released because it is easier for them to flee than it is for someone lacking such wealth.

The denial of release is an Order that is immediately appealable, so Maxwell’s attorneys can file an appeal in the 2nd Circuit Court of Appeals.  Before they take that step, however, I expect they will come back to Judge Nathan one more time with a more substantial package of release conditions to offer.