Maxwell Judge Warns Omicron Surge Could Result in a Mistrial
(Bloomberg) -- The judge presiding over Ghislaine Maxwell’s sex-trafficking trial warned that the “astronomical spike” in Covid cases driven by the omicron variant could lead to a mistrial.
U.S. District Judge Alison Nathan told lawyers on Tuesday afternoon that she was considering having jurors deliberate through the holiday weekend if they failed to reach a verdict by New Year’s Eve. Earlier in the day, she asked jurors to be prepared to stay until 6 p.m. instead of 5 p.m.
“We now face a high and daily escalating risk that jurors and/or necessary trial participants would need to quarantine, thus disrupting trial and putting at risk our ability to complete this trial,” Nathan told lawyers outside the jury’s presence. “Put simply, 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.”
Nathan told lawyers she was concerned that, if too many jurors become ill with the variant, then there may not be a full panel of 12 available to deliberate and she may have to declare a mistrial. It’s unclear what would happen if some jurors become mildly ill though. In another case early in the pandemic, Nathan let a juror deliberate via FaceTime.
Pressuring the Jury
Maxwell’s defense lawyers had argued against pressuring the jury, and the judge ultimately didn’t tell jurors they would have to work through the weekend. She also acceded to their request that they be dismissed at 5 p.m. on Tuesday, despite her earlier insistence that they stay an extra hour every night this week until they reach a verdict.
It was the jury’s fourth full day of deliberations without a verdict. Maxwell has pleaded not guilty to charges that she lured and groomed underage girls for sexual abuse by Jeffrey Epstein and participated in some of the abuse herself. The trial began on Nov. 29, and the case went to the jury on Dec. 20.
The jury told the judge in their note asking to leave early that their “deliberations are moving along and we are making progress.” The panel will resume deliberations at 9 a.m. on Wednesday.
A mistrial, which could also result from a deadlocked jury, would force the government to decide whether to re-try the case before a new panel. Maxwell is on trial on six counts, including sex-trafficking an underage girl. She also faces two counts of perjury which Nathan ruled would be addressed in a separate trial.
Nathan had expressed concerns about Covid on Monday morning but didn’t raise the possibility then of mistrial.
‘A Different Place’
“We are simply in a different place regarding the pandemic than we were a week ago,” she said. “It is time to have the jury make plans to continue to deliberate until a verdict is reached.”
New York City has reported a daily average of more than 20,000 confirmed and probable Covid cases in the past week. That’s more than double the daily average over the past 28 days. Though cases are at a record, hospitalizations and deaths for now remain well below record highs reached in 2020.
The court has a number of safety measures in place for jurors, who must wear masks at all times and deliberate at O-shaped tables that allow them to remain at least six feet apart. Starting yesterday, the chief federal judge in Manhattan required any mask worn in the courthouse to be an N-95, KF-94, or KN-95 for extra protection.
But Nathan, unlike some of her colleagues on the federal bench, did not require all jurors to be vaccinated.
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