Several former judges and prosecutors said the omission can’t be brushed aside because abuse was so central to the sex-trafficking case. It “creates the suspicion that they lied about those issues so that they could get on the jury,” said former Boston U.S. Attorney Andrew Lelling. “And that creates concern that the verdict is tainted.”

The situation doesn’t line up neatly with other cases in which criminal defendants have been granted new trials, and U.S. District Judge Alison Nathan could decide the juror’s lack of candor was unintentional and wouldn’t have changed the outcome. Maxwell, 60, was found guilty on Dec. 29 of helping former boyfriend Jeffrey Epstein recruit, groom and sexually assault teenage girls.

Nancy Gertner, a former federal judge, said that putting the four women who testified about their abuse through another trial would be “torture.” But she said it seemed warranted based on her understanding of the facts.

“If the enterprise is to make sure a verdict is fair, I think you have to set aside this verdict,” she said.

Scotty David

Widely hailed as long-delayed justice for victims of Epstein, the verdict was called into question after one juror gave a series of press interviews. Identified by his first and middle names, Scotty David said he brought up his childhood sexual-abuse to sway other jurors who doubted the accounts of some of the women who testified against Maxwell. A second juror subsequently told the New York Times that they also raised their past sexual abuse during deliberations.

Potential jurors were asked in a lengthy questionnaire if they or anyone close to them had been victims of sexual abuse. Those who answered yes were questioned privately by the judge and lawyers. Scotty David said in a Reuters interview that he “flew through” the questionnaire but that he “would have answered honestly” if he had been asked about past sexual abuse. Court transcripts show he wasn’t subject to any additional questioning.

Maxwell’s lawyers swiftly called for a new trial, saying she was denied her right to a fair and impartial jury. Nathan has asked both sides to brief her on arguments for and against a new trial. Prosecutors said that they’d be willing to drop two perjury charges against the British socialite if the judge decides against granting a new trial. 

The government also asked Nathan to question Scotty David, and the judge has requested briefing on the legal issues. Todd Spodek, a lawyer for Scotty David, didn’t immediately respond to email and voicemail messages seeking comment. If he is questioned by judge, it may be behind closed doors in her chambers.

Nathan said in a Wednesday scheduling order that Spodek had requested a copy of his client’s completed questionnaire and transcripts of his questioning by the court.

‘Tough call’

Maxwell’s quest for a new trial is no sure thing. Scotty David said in interviews that he approached the trial with an open mind. The jury also took about five days to reach its verdict, suggesting they considered the evidence carefully, and acquitted her on one of the six counts against her.

“Assuming this juror did not reveal that he had been a victim of sexual abuse and the defense attorneys didn’t know about it, did that deprive Maxwell of a fair trial?” asked Stephen Orlofsky, another former federal judge. “That’s a tough call. It’s a very serious case.”

The U.S. Supreme Court in a 1984 ruling set a high bar for overturning verdicts when jurors give “mistaken, though honest” answers during the jury selection process. A defendant must show the answer was wrong and a correct one would provide “a valid basis for a challenge for cause.” To overturn a verdict means “to insist on something closer to perfection than our judicial system can be expected to give,” the justices said.

In a Bloomberg Opinion piece, Yale Law School professor Stephen Carter said Maxwell’s conviction should stand. He said jurors routinely lie during the selection process and judges are loathe to second-guess the process by which juries reach verdicts. 

‘Intense feelings’

But Lelling, who led the “Varsity Blues” college-admissions prosecutions, said childhood sexual abuse stood apart in his mind from other things jurors conceal.

“If the crime at issue in this trial resonates so much with that person’s personal experience, then it creates the risk that perhaps they are too influential in the jury room,” said Lelling. The former prosecutor said he had little doubt Scotty David would have been excluded as a juror if his childhood abuse had been known because it “goes to the core of the case and generates intense feelings both in the person victimized and in others in the group.”

Orlofsky agreed. “You don’t want someone who’s been a victim of a crime of that nature on a jury like that,” he said. “Even if they said they could be fair and impartial, I would have a serious concern.”

Scotty David’s press comments celebrating Maxwell’s conviction as “justice for these victims” and describing her as a “predator” are also fodder for the defense in that regard, said Marc Fernich, a New York appellate lawyer who is representing Mexican drug lord Joaquin “El Chapo” Guzman.

‘Marketable’ juror

“I would use those comments in the press to argue that the falsehoods could not possibly have been accidental, but you can infer reasonably that this person went in there with a motive to get on the jury and to convict Maxwell to get back at sexual abusers for the juror’s own experiences,” said Fernich. “It couldn’t have been he just ‘missed’ it.”

If the judge decides that’s the case, Maxwell will almost certainly get a new trial.

Four convictions in what was then the biggest criminal tax-fraud case ever to go to trial were tossed after it emerged that an alcoholic, suspended lawyer lied about her past to make herself more “marketable” for jury service. 

“A juror who lies her way onto a jury is not really a juror at all,” the federal appeals court in New York said in the case. “She is an interloper akin to a stranger who sneaks into the jury room.”