EFTA00014671.pdf

HADDON MORGAN FOREMAN May 12, 2021 VIA ECF The Honorable Alison J. Nathan United States District Court Southern District of New York 40 Foley Square New York, NY 10007 Haddon, Morgan and Foreman. r.c Jeffrey Paglluca Denver. Colorado 80203 Re: Response to Government Letters dated May 4, and May 6, 2021 Regarding F.R. Crim. P. 17(c) Subpoena, United States v. Ghislaine Maxwell, 20 Cr. 330 (MN) Dear Judge Nathan, On March 15, 2021, Ms. Maxwell asked the Court to issue a F.R.Crim.P. 17(c)(3) subpoena for production of evidence controlled by Boies, Schiller, and Flexner ("BSF") lawyers working with the government on behalf of alleged (now-adult) witnesses. In her ex-parte application, Ms. Maxwell provided reasons for requesting certain items of evidence, including that the government either failed to secure the evidence or refused to produce it to Ms. Maxwell; she also disclosed theories related to her defense, strategy, and work product. After considering the application and BSF's response, the Court invited comment from the government regarding subpoenaed items 9 (a journal), 10 (boots), and 11(photographs). Specifically, the Court directed the government "to notify the Court of its views as to Requests 9 through 11." Dkt. 252. The government's position is consistent with its general approach to evidence in this case which is to blindly accept information it considers unfavorable to Ms. Maxwell, begrudgingly EFTA00014671 The Honorable Alison J. Nathan May 12, 2021 Page 2 produce Brady material with various disclaimers such as "although the government is not obligated to do so" (Dkt. 269 pp. 8, 9), and obfuscate the importance of legitimate defense requests for discovery. The government repeatedly demonstrates that it views this process not as a search for the truth, but for a conviction at any cost, including the truth. Request 9, The Journal Accuser-2 has been represented by BSF since approximately 2016. She sued Ms. Maxwell and participated in the Epstein Victim Compensation Fund. She claims to have kept a journal for a period in 1996 in which she described various events, including her interactions with Jeffrey Epstein. Seven (7) photocopied pages of this journal, two of which are the front and back covers, were selectively produced by BSF in discovery during civil litigation to counsel for Ms. Maxwell, apparently as support for her claims against Epstein. The civil litigation was stayed and ultimately dismissed prior to resolution of questions related to the failure to produce the entire journal. Accuser-2 relied on select portions of the journal in public discussions with various representatives of the media and claims to have looked at the journal to "refresh [her] memory about this time." See, e.g., Michael Baker, "The First Women to Report Jeffrey Epstein," The Daily Podcast, NY Times (Aug. 26, 2019), Tr. at 2 ("When I was looking, trying to refresh my memory about this time, I came across this journal entry. [Host] [Accuser-2] has this journal from that time period. It's a spiral journal with a picture of two sisters on the front.").' When it suits its purpose, such as arguing against bail, the government touts the journal as powerful evidence, to wit, "Contemporaneous journal entries corroborate details of another Podcast audio and transcript located at https://www.nytimes.com/2019/08/26/podcasts/the- daily/epstein-rnaxwell ?showTranscript=1. EFTA00014672 The Honorable Alison J. Nathan May 12, 2021 Page 3 victim's account, including the details of when, where, and how that victim came to meet Epstein." Dkt. 100 p. II. And, the government has signaled its intent to introduce these pages at trial, arguing that there is no "basis for doubting the authenticity of the documents which the Government expects that [Accuser-2] will be able to properly authenticate at trial." Dkt. 268, p. 5. What did, or did not, happen "about this time" and what Accuser-2 recorded, and did not record "about this time" is relevant, exculpatory, evidence. The government admits it does not have the remaining pages of the journal and admits that it has made no effort to read the remaining pages of the journal. This does not stop the government, however, from expressing baseless opinions about the journal's content, relevance, or admissibility because, in the blind search for a conviction regardless of the truth, ignorance is indeed bliss. The government implies that the journal, here, has "been evaluated for Brady material" (Dkt. 269 p. 4) which is not true. Free from any actual knowledge, the government liberally makes unfounded and misleading claims like: • "The remainder of the diary consists of [Accuser-2's] unrelated personal diary entries;" (Id., p.3) • "[T]he diary contains no relevant material;" (Id., p. 4) • The diary is "full of [Accuser-2's] personal and unrelated information;" (Id., p. 4 n.1) • The diary is "likely to sweep in a significant period of [Accuser-2's] life before [she] met Epstein...." (Id., p. 6) The government makes additional questionable, contradictory, statements regarding the journal. The government offers that it "understands" that the item requested is Accuser-2's "entire diary from her teenage years." (Id., p.2) The "understanding" has no factual attribution EFTA00014673 The Honorable Alison J. Nathan May 12, 2021 Page 4 and is belied by an "understanding" months earlier where the government represented that Accuser-2 "stopped writing in her journal about a month after" her meeting with Epstein, Dkt. 100, p.11 n.2. Incredibly, the government has never examined or taken possession of the journal and is relying on the representations of lawyers adverse to Ms. Maxwell in multiple civil litigations, the same lawyers who have taken an active role in providing the government with selective pieces of evidence and who regularly bash Ms. Maxwell in the media, hardly a reliable source.' It is fundamentally wrong to use a part of a writing to, for example, deny bail, or refresh recollection, or as a past-recollection recorded, or as a prior-consistent statement, and at the same time ignore the remainder of the writing. The government should know what is in the remainder of the journal; it simply chooses selective ignorance and relies on lawyers adverse to Ms. Maxwell for cover. This type of selective disclosure of information is routinely rejected by courts, including the Second Circuit Court of Appeals. Known as the "fairness doctrine," when one party makes assertions about parts of a communication or writing the entire communication loses protected status and requires disclosure to the opposing party. The aim of the doctrine is to protect the adverse "party, the factfinder, and the judicial process from selectively disclosed and potentially misleading evidence." In re von Bulow, 828 F.2d 94, 102 (2d Cir. 1987); see also United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991); Joy v. North, 692 F.2d 880, 893-94 (2d Cir. 1982); Teachers Ins. & Annuity Assin of America v. Shamrock Broadcasting Co., 521 F.Supp. 638 (S.D.N.Y. 1981). 2 As Ms. Maxwell previously pointed out, another of BSFs clients confessed to creating a fake "diary" to sell to a tabloid news journalist, fifteen years after the fact, and while represented by BSF. See Dkt. 244 at 10 n.4. EFTA00014674 The Honorable Alison J. Nathan May 12, 2021 Page 5 Given that Accuser-2, the putative witness, has publicly claimed to rely on the journal to "refresh" her memory and the government's apparent intention to introduce the pages at trial other evidentiary principles related to fairness come into play. F.R.E. 106, the Rule of Completeness, allows that "Ulf a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part--or any other writing or recorded statement--that in fairne