Ghislaine Maxwell's legal team hopes to secure her release on basis of Bill Cosby ruling

[Yo_Mama_Been_Loggin]

Ghislaine Maxwell's legal team is hoping to have her sex trafficking convictions quashed in light of a recent ruling that freed Bill Cosby, the British socialite's lawyer told The Telegraph.

Cosby, the disgraced former comedian once beloved as “America’s dad”, was released from jail on Wednesday after a judge in Pennsylvania overturned his conviction based on an earlier non-prosecution agreement with the 83-year-old.

David Oscar Markus, a lawyer for Ms Maxwell, said the decision should be applied to her upcoming trial on sex trafficking charges because of a 2007 plea deal struck with her former boyfriend Jeffrey Epstein.

The agreement allowed Epstein to escape prosecution on federal sex-trafficking charges and instead plead guilty to lesser state crimes as well as shielding the financier's alleged co-conspirators from prosecution.

https://www.yahoo.com/news/ghislaine-maxwells-legal-team-hopes-171636213.html

[XanaDUer2]

1. Uh oh nt

[fescuerescue]

2. The legal basis makes sense

Plus if the Feds are going to frequently renew on these deals, it seems to me that they will become less attractive as an enforcement tool.

I don't want to see Maxwell or Cosby walking free. But the Feds shouldn't be making deals that they have no intention of honoring.

[Ms. Toad]

5. Except she is not alleging she had a deal, or that any promise was made to her. n/t

[fescuerescue]

7. I guess we'll just have to read what her lawyer files

They are probably trying to leverage some language in Epsteins deal, no matter how tenuous.

She has little to lose.

[Ocelot II]

8. Anyhow, since the Cosby decision came from the PA Supreme Court,

it's not precedent anywhere but PA, and certainly not in the federal system. And it was a bad decision.

[Ms. Toad]

12. I concur with all of that. n/t

[Hamlette]

13. It was a "good" decision and the same principle applies outside of PA but maybe not here

In the Cosby case, the PA prosecutor dropped the criminal charges because there was not enough evidence at the time for a finding of guilt beyond a reasonable doubt but also because Andrea Constand, the accuser, was suing Cosby in civil court and without the risk of prosecution, Cosby would not be able to take the 5th Amendment in the civil case. In one sense, the prosecutor was helping the accuser by making Cosby answer questions.

What the court said was the statements Cosby made in the deposition in the civil case should not have been allowed into evidence in the later prosecution.

To do otherwise, would put the defendant in an impossible position. In the civil case deposition he could have been held in contempt and thrown in jail for not answering the questions (asserting his 5th Amendment rights).

In this case, I would think that any statements obtained after that utterly disgraceful agreement with Epstein would not be allowed in court but I'm not sure that gets the dismissal Maxwell seeks now.

[Ms. Toad]

20. The problem with your logic

is that Cosby was never put in an impossible situation. He was subpoenaed to testify in a Civil matter. He is obligated to testify - unless doing so would incriminate him. If he is concerned about incrimination, he needs to assert the 5th. At that point, he will be given formal immunity (not a press release - which is not the normal way to grant imunity) - and be required to speak - or not - in which case he can refuse to testify. But you don't just speak and expect the courts to divine that you are doing so because you think you can't be prosecuted.

He never bothered to attempt to assert the 5th amendment - and had, in fact, already incriminated himself on other occasions. Because he did not follow the proper procedure there is no way to know why he chose to speak in the civil trial. I'm pretty sure, based on his arrogance, that he truly believed nothing he said was incriminating.

The trial court fully explored this matter, and the appellate court upheld it. While the PA Supreme court has the final say (abent a petition for cert granted by the Supreme Court), that doesn't make the decision "good."

I thnk they got it wrong. While there was intended inducement and, arguably, it would have been reasonable to rely on the press release (although even that is iffy), there is insufficient evidence to establish that the reason he testified was in reliance on the promise becuase he never even bothered to test it.

[Hamlette]

28. there is much I don't know.

I was relying on the logic of Barbara McQuade who I trust.
The court’s basis for its decision was a highly unusual 2005 news release by Bruce Castor, when he was district attorney for Montgomery County, Pa. Mr. Castor stated that he chose not to file criminal charges against Mr. Cosby because of “insufficient credible and admissible evidence.” The state Supreme Court held that Mr. Castor’s public statements were binding on his successor, who resuscitated the case in 2015. Using Mr. Cosby’s deposition statements against him, the court said, was a “coercive bait and switch.”

While the release of Mr. Cosby is an affront to Andrea Constand, the victim, as well as to the other women who testified against him and to the public, the court was reaffirming the longstanding notion that due process requires the enforcement of prosecutors’ promises. In Santobello v. New York, the U.S. Supreme Court noted that prosecutors’ promises are not limited to the plea context. Any promise a prosecutor makes that induces reliance to the detriment of the defendant may be binding. Here, the court is merely enforcing the promise Mr. Castor made.

When I worked as a federal prosecutor, I was cautious about making promises because I knew they were binding. With rare exception, my office refrained from making promises to decline charges against someone because of the very real possibility that additional evidence of guilt could emerge. Our hands would be tied if the person had relied on that promise in any way. If we agreed to bring no further charges against someone as part of a plea deal, we included in the plea agreement the caveat that the promise was limited to information that was currently known to the government.

https://www.nytimes.com/2021/07/01/opinion/bill-cosby-released.html?action=click&module=Opinion&pgtype=Homepage

[Ms. Toad]

30. That is much closer than any other made for public consumption summary

What it doesn't address is where i think the court got it wrong.

For detrimental reliance to make the promise enforceable, there are three elements. That analysis only addresses the first (making a promise intended to induce reliance). As to Cosby, I think it fails as to the third (the promise actually induced reliance). Inducement does not automatically follow just because a person acts how you would expect then to had they relied on the promise.

Here's a more obvious example: Joe tells his buddy that he is going to retire no matter what when he turns 63. Meanwhile, the place he works sends out a press release announcing inducements to early retirement: anyone who retirees at age 63 or older will get a $5000 bonus. When Joe retires at 63, his retirement wasn't induced by the promise of a bonus. He was just doing what he had already planned to do - as evidenced by his statement to his friend.

Cosby is arrogant enough to believe he has done nothing wrong. He was already making incriminating statements before the prosecutor made his stupid promise. He didn't even bother to try to assert the 5th to get out of testifying in the civil matter - and I think he truly believes he didn't need to not because of the prosecutors public statement, but because he didn't believe what he was saying was incriminating. If that is true, his statements were admissible, because he did not make them in reliance on the no prosecution promise.

The enforceability of promises, in a legal context, requires more than a simple promise - it requires consideration (or a substitute for it). Essentially, consideration is giving up something of value to induce the other to also give up something of value). Had this been a negotiated deal, it would have been no prosecution in exchange for civil testimony. Bare promises (even when made by prosecutors) aren't generally enforceable. An exception arises when someone reasonably relies on the promise, to their detriment. That reasonable detrimental reliance provides a substitute for consideration - but because there wasn't an actual deal, it is much more strictly interpreted. Based on the evidence summarized in the opinion, I simply don't believe it met that standard (especially since the the court most directly able to observe the evidence found otherwise, as did the first appellate court).

I also think it fails as to the second element. I don't think it is reasonable for a person about to make incriminating statements that could send you to jail for a long time to rely on a press release, alone, in making such statements. At a minimum, a reasonable person would have tested his understanding by asserting the 5th in the civil matte which would have forced the state to confirm that they really were not going to prosecute him. At that point, reliance would have been reasonable.

As to Maxwell, it is even more of a stretch to establish that her reliance on a promise made to someone else was reasonable (the second element), and i haven't seen enough of the evidence to have an opinion a to whether she actually did rely on it in making incriminating statements.

[Tomconroy]

32. Cosby was lucky that he wasn't advised

To assert his fifth amendment rights at the deposition and then seek a formal grant of immunity. That would have been strong proof that he found the original promise of immunity to be unreliable. Good lawyering? Lucky lawyering? Who's to Say?

[Ms. Toad]

35. Yes and no.

Very bad lawyering. Had he attempted to assert his 5th amendment rights in the Civil deposition there would likely never have been a trial.

Either he would have beeen told he had none, since there was no guarantee he would not be tried in the future. Then he might have just kept yakking, assuming he really does believe he did nothng wrong. But, more likely, his attorney would have been able to sit on him enough that he wouldn't have said anything. (Heavily bruised shins from repeated kicking by one's attorney tends to encourage one to keep one's mouth shut. ) That might also have made the outcome of the civil matter more favorable to him.

OR

His immunity would have been confirmed, leaving him free to talk - AND - a clear public record that his reliance on the promise was reasonable. (And solid evidence he relied on it in speaking).

So - his attorney's failure to have him attempt to assert the 5th likely either cost him $$ (in the civil trial) or 2 years in jail (since the trial court fully considered this matter and held differently than the Supreme Court, as did the appellate court).

That bad lawyering - ultimately - after 2 years in jail - did hit the jackpot and get him out. But counting on ultimately being lucky - while forfeiting $$ in the civil matter and/or time in jail is just bad lawyering.

[Tomconroy]

37. I don't know the rules in PA

But wouldn't it be likely all you would get from the court if you asserted a fifth amendment right at a deposition would be testimonial immunity rather than transactional immunity? Why would you bother with the former if you thought you already had the latter? It does just undermine your claim.
I'm trying to scheme out how you raise the transactional immunity in court in the context of the deposition. You'd have to raise the objection then tell the court to overrule the objection because you have no fifth amendment right since you are immune. Or do you somehow get before the court and try to get some sort of declaratory ruling? Wouldn't the court just shake it's head and say; Go figure it out if you ever get arrested.
I suspect some of this must have been gamed out by Cosby's lawyers. Anyway, I'll give them the benefit of the doubt.
As to the prison time, isn't the real problem that he wasn't allowed an appellate bond? How did that happen? It turns out he had real appellate issues.

[Ms. Toad]

38. It isn't that you are asking the court to grant immunity

You are expressing concern that you might subject yoruself to criminal liability if you testify. Just as several did in the Derek Chauvin trial - The civil court cannot compel you to testify in a manner that could be used later in a criminal prosecution. I'm not sure what your concern is - since that is exactly the standard process when a witness is asked a question that mighth be used against them later in a criminal prosecution.

There was no agreement here for Cosby to rely on - Cosby didn't bargain testimony in exchange for a non-prosecution statement. He had no personal promise there would be no prosecution - he had a press release. So the issue is the reasonablenes of his reliance on the public statements of the prosecution when he decided to talk.

It just isn't reasonable to simply rely on a public statement, without more. You express doubt when you are asked to testify as to matters that might subject you to later criminal prosecution by asserting the 5th. That is the time to assess if there is a real risk - before you utter incrimnating words (not after you have already spilled the beans).

The civil trial court would have said either - you're right, you could put yourself at risk for criminal prosecution (so yes, you can plead the 5th - which would have decreased the likelihood that he would ever owe his victim anything) - OR - it would have called in the prosecutor, requeste clarificaiton on the record (not in a newspaper) which would then have been trotted out in the subsequent criminal trial: "Your honor, not only did the prosecutor make ths bold promise in the paprs, he confirmed, under oath, that he meant what he said. Once you have that kind of testing, it becomes reasonable for Cosby to rely on it and speak - guaranteeing no criminal prosecution.

But not until then. Only a fool would permit their client to testify on matters that put him at grave risk for criminal liability without anything more certain than a press release. Especially when testifying increased the risk that he would owe his victim money - and especialy when not being certain as to immunity also put his client at greater risk for criminal liability. There is simply no downside to asserting the 5th in the civil matter. (And here it would have decreased or eliminated civil liability and/or jail time.

[RobinA]

39. I Don't Get

why you insist he relied on a press release. There was a press release, but to think there was a press release out of the blue and that it was the only communication between Castor and Cosby's civil attorneys seems unrealistic. What lawyer is going to let his or her client spill the beans, risking considerable state time for an old man, based on a press release? I have no doubt that Cosby and his attorneys had a very reasonable belief that he would not be prosecuted. Either that they took a biiiiig risk, which they partially lost when Cosby ended up at Graterford for two years.

[Ms. Toad]

40. I read the PA Supreme Court opinion.

Which summarized everything in 79 or so pages of gory detail.

[Tomconroy]

43. What surprised me was to be informed

That Castor never consulted with the complainant (legal speak here). Hard to believe that could happen in this day and age. But I guess that it does.

[Tomconroy]

41. I suppose they could have asked Castor

To enter into a formal immunity agreement. Maybe that would have been the way to go. Was Castor still around at the time of the deposition? If not, you'd be running the risk of getting turned down.
I just have a hard time seeing a court giving a definitive ruling on the transactional immunity issue short of a criminal trial. I think they would say; "Here's your testimonial immunity. Now stop bothering me."

[Ms. Toad]

44. The civil court would not be granting immunty

They have no authority to do that. They are evaluating his assertion (by pleading the 5th) that his civil testimony, if forced to give it, puts him at risk of crimnial prosecution. Once an individual asserts their 5th amendment rights not to incriminate themself, the court either has to honor it - or make a determination there is no risk. It can't just force him to testify with that threat hanging over his head, without violating his constitutional rights.

If the court agrees with his concerns (by determining there is a legitimate fear of prosecution), they will honor his assertion of the 5th amendent and will not force him to testify because doing so would violate his 5th amendment rights. That dramatically reduces his civil liability (since it largely rested on dsclosures he made while testifying). He is still at risk for criminal prosecution - but the risk is considerably less than with his civil testimony becaue (again) the criminal liability was largely based on things he said in the civil matter.

On the other hand - if they find his concerns misplaced, they will require him to testify in the civil matter. The mere fact that a court evaluated his understanding of the press release - and forced him to testify - makes his reliance on that press release reasonable. (And it also bolsters his claim (#2, below) that - but for the promise - he would not have testifed.)

That's just how the system works.

Remember this was NOT based on an agreement - and he would not have ben asking the civil court to grant immunity. Just to make a ruling on whether there was a risk of prosecution. Once the civil court makes that assessment - his reliance becomes, without a doubt, reasonable (#3 below).

Detrimental reliance (the theory the court use to overturn the convictions) is based on three elements:

1. Did the prosecutor intend to induce Cosby to talk at the civil trial by promising he would not be prosecuted criminally (no quesion but what that was his intent - he wrote to the later prosecutor and told him so, and I believe he also testified that was his intent).

2. Did Cosby rely on that promise when he decided to testify at the civil trial (rather than assertng the 5th amendment). I think that is questionable - since he was already talking relativly freely about incriminating matters. He (still) seems to believe he did nothing wrong - and, in fact, seems rather proud of himself. I suspect he enjoyed bragging - and it didn't seriously cross his mind that he might actually suffer criminal liablity. After all, he never even bothered to try to avoid testifying i the civil matter by asserting the 5th.

3. Even if he relied on the promise - was that reliance reasonable - this is the point we've been discussing. As an attorney, I would never suggest my attorney rely on a public declaration - no matter how attractive it seems - before incriminating themselves. I would test that by having my client assert their 5th amendment rights, and let the court sort it out. Anything short of that is playing Russian Roulette with my client's freedom.

[Tomconroy]

45. His reliance was reasonable.

That's what the court decided.
As to a civil court ruling on the validity of a press release promise of immunity, Lord help us
I think they would tell Cosby: You think you're immune: Go testify. You think you're not immune: Go assert your fifth amendment right. You want a ruling on whether or not you are immune: Go get arrested.
Of course if you went into court and got a ruling that you were not immune, that would kind of suck.

PS: If Cosby had asserted his fifth amendment right, I suppose the victim would have approached the state and asked that they seek a grant of testimonial immunity from the court. I think that's how it works in PA. I guess the transactional immunity issue could have been raised that way. But I think I read that the PA statutory immunity process requires approval from a judge. Does it allow for transactional immunity as well as testimonial immunity? I have no idea. But it's all a bit fraught. There are going to be risks no matter what you do.
Maybe in the end you're better off with a lucky lawyer rather than a great one.

[Ms. Toad]

46. I am not sure why you believe civil courts don't make determinations

as to 5th amendent rights. While the 5th amendment protects you from prosecution based on compelled incriminating statements, those statements are gathered from a variety of sources:
by police, in civil matters, in other criminal matters, etd. The government cannot compel statements anywhere if those statements might (frequently later) be used for criminal prosecution.

What is at issue here is whether the Cosby could be compelled to testify in the civil matter (or was otherwise given under circumstances that protected him from prosecution based on those statements. That is solely a matter for the civil trial court to determine (subject to review, of course).

When he peads the 5th as to his civil testimony - the trial court wouldn't be saying, "Go" testify, or "Go" assert your 5th amendment right - they are ruling as to his right NOT to testify in that trial court For that matter it wouldn't be "go" get arrested - in ths situation they would be the ones doing the arresting, if he chose to push things that far. He would assert his 5th amendment rights, be ordered to testify, he would refuse to do so after being ordered to do so, they would find him in contempt for refusing to testify andarrest him.

Civil courts have to be every bit a competent as criminal ones to evaluate whether an individual's testimony places them at risk for criminal prosecution. Because they are constitutionally prohibited from compellling testimony in their own court if doing so would place the individual at risk of incriminating himself in a subsequent criminal trial, they have to be competent to evaluate when testifying in a civil matter crosses the line.

And as to the PA Supreme Court's decisison - the question I ask my students all the time - including as part of reading the second case most of them have ever read (before their first day of law school), "Do you think the court got it right?"

Courts are not infallible (e.g. Plessy v. Ferguson - and dozens of others I could name, but whose names whose not mean much to you because they are not that infamous). SCOTUS is only infallible because it has the final say - not becuae it always gets it right.

I think the PA court got the law right, but the appliction of the law as to these facts wrong.

[Tomconroy]

47. I am now long retired, and am happy beiing so.

But for reasons I can't entirely explain it's been kind of fun tossing this stuff back and forth. I should have known you were a law professor. Your ntelligence shines through.
I'll look forward to your future posts. Maybe I'll weigh in with an occasional snarky comment.
All the best,
Tom

PS: Years ago, I attended a lecture by a truly good appellate justice. He explained what he did. He would review the record and ask himself: Was what happened here fair? If the answer was No, he would look high and low for a reason to reverse.
I do think that's what happened in Cosby's case. For a lot of reasons the court decided what had happened wasn't fair.

[Ms. Toad]

48. I'm used to snark.

And there are nearly always counter-arguments. I got stuck in the swing position on the moot court team because a conservative professor decided it would be fun to make argue the conservative position for tryouts. It was fun watching him pick his jaw up off the floor- and then put me in the position that I had to argue both sides in competition.

I'm an assistant dean with a heavy teaching load (including on-boarding all of the 1L students - and sheparding them through the bar exam).

[Tomconroy]

49. You have an admirer!

Now I'm back to posting Cole Porter songs.

[Ms. Toad]

50. Thanks - it was fun. n/t

[Hamlette]

14. I don't think it matters if the agreement was WITH her, if she relied on it to her detriment.

[Ms. Toad]

18. Nope. There are (generally) three elements to detrimental reliance

You don't just randomly get to pull promises out of the air and rely on them.

Detrimental reliance requires that the promise be intended to induce reliance. It may have been made to induce Epstein to do something - but a deal with Epstein would not be intended to induce Maxwell to do something

The reliance has to be reasonable - a promise not to prosecute Epstein is not a promise not to prosecute anyone else, so it would not be reasonable for her to rely on a promise not to prosecute Epstein to protect her from prosecution.

She actually has to rely on it - not enough facts available as to whether she relied on it or not.

But it doesn't matter - since it pretty clearly fails the first two elements.

[Hamlette]

19. the deal was an agreement to not prosecute Epstein or any of his cronies.

not sure the exact language but I'd never heard anything like it.

[Ms. Toad]

21. I don't see anything - other than Maxwell's assertions

that she is covered by it. Prosecutors have specifically said it does not.

[Tomconroy]

23. It would be helpful to track down a copy

Of Epstein's actual plea agreement. It must be floating out there somewhere on the internet. It does appear to promise that associates (without naming Maxwell specifically) would not be prosecuted. Reasonable reliance: Too early to say.

[Ms. Toad]

24. In a quick search,

I wasn't able to find it.

[Tomconroy]

25. Just judging by news reports

It was limited to crimes committed in Florida. For that reason, it's probably going to be a tough argument to make.

[Hamlette]

27. it was federal in Florida

from the article cited above

Not only would Epstein serve just 13 months in the county jail, but the deal — called a non-prosecution agreement — essentially shut down an ongoing FBI probe into whether there were more victims and other powerful people who took part in Epstein’s sex crimes, according to a Miami Herald examination of thousands of emails, court documents and FBI records.

https://www.miamiherald.com/news/local/article220097825.html

[Hamlette]

26. Miami Herald article from 2019

Jeffrey Epstein, 54, was accused of assembling a large, cult-like network of underage girls — with the help of young female recruiters — to coerce into having sex acts behind the walls of his opulent waterfront mansion as often as three times a day, the Town of Palm Beach police found.
snip

The pact required Epstein to plead guilty to two prostitution charges in state court. Epstein and four of his accomplices named in the agreement received immunity from all federal criminal charges. But even more unusual, the deal included wording that granted immunity to “any potential co-conspirators’’ who were also involved in Epstein’s crimes. These accomplices or participants were not identified in the agreement, leaving it open to interpretation whether it possibly referred to other influential people who were having sex with underage girls at Epstein’s various homes or on his plane.

https://www.miamiherald.com/news/local/article220097825.html

it's a long multipart article and it will make you sick and furious but it is well worth the read.

[Tomconroy]

29. When I get in trouble

I'm going to hire the guys who negotiated THAT deal!

[Ilsa]

33. You make marvelous sense. nt

[Ms. Toad]

34. Thanks -

About half of my job is preparing law students to take the bar exam. Breaking down the law (in 16 subject areas) into bite sized chunks is what I spend a lot of my time doing - since many of them aren't able to step down from the very different way we teach them in law school.

[Grins]

22. She is arguing...

She is protected because the feds made a deal with Epstein that also shielded “the financier's alleged co-conspirators from prosecution.”

At least she is admitting she is a co-conspirator.

[Darwins_Retriever]

36. But the deal was made in 2007

Anything she did since then is still game even if a judge agrees to the applicability of the agreement.

[Xoan]

3. Sounds like prosecutors need to pay.

[Ms. Toad]

4. Nonsense.

Cosby wasn't released on the basis of an agreement - he was released on a detrimental reliance theory based on the prosecution's public statements it would not prosecute him.

An agreement with a different person (Epstein), in a different jurisdiction would not apply to her.

The Cosby decison would only be applicable to detrimental reliance - and it is pretty hard to make a case that she testified without asserting her 5th amendment righsg in reliance on a promise not to prosecute Epstein.

[MontanaMama]

6. If this sex trafficker gets out of prison

she will be long gone. Definite flight risk.

[fescuerescue]

9. If she is releases it'll be because the charges are dropped

But I agree she'll vanish into the wind.

[Shrike47]

10. I think this has no legs but is a ripe opportunity for billable hours. What deal with her?

[obamanut2012]

11. Except she's never had a deal, ever

She can't use the deal given to her PIC as hers.

[Tomconroy]

15. There was an article in today's NY Daily News

About this. Apparently Epstein's deal with the US Attys in Florida was in writing and there were explicit promises not to prosecute any of Epstein's associates.
Just have to wait and see.

[BradAllison]

16. If someone made that deal they are an idiot. n/m

[Arazi]

51. #Traitor's former HHS Secretary Alex Azar made that deal

[Vinca]

17. That doesn't seem to make sense unless Maxwell has suddenly morphed into Epstein.

The deal was made with Jeffrey Epstein back in 2007.

[Sympthsical]

42. Depends what was in the deal

If she is included in the non-prosecution agreement, we could be in for a bit of a shit show. One of her lawyers had an OP-ed about it the other day. The Feds are furious.

Hoo boy.

[lagomorph777]

31. The perverts' get out of jail free card.