Can a Defendant “Fully Prepare” for Trial While Locked up in a Federal Jail?
By Evan Lipton
Ghislaine Maxwell is scheduled to go to trial this fall. On May 3, 2021, the judge who will conduct the proceedings issued an Order affirming her confidence that “Ms. Maxwell and her lawyers are fully able to prepare for trial.” But the Court’s Order begs the question of whether anyone can really be “fully able to prepare for trial” while locked up under harsh and punitive conditions at a federal jail. Anyone who has been involved in the process of defending a major criminal case knows that the answer is ‘no.’ That courts and prosecutors routinely claim otherwise is a legal fiction. The way that Ms. Maxwell is being treated while subject to pretrial detention demonstrates that an incarcerated person cannot adequately prepare for trial while being housed in a maximum-security federal lockup. Anyone concerned with the presumption of innocence and basic concepts of individual liberty and the right to effective assistance of counsel should be concerned.
A letter filed by Maxwell’s counsel is just the latest example of how bad conditions of confinement have become at our local federal jails, and how little a district judge is able (or willing) to do about it. Ms. Maxwell is being held at the Metropolitan Detention Center (“MDC”). The MDC is a vast facility made up of two buildings located amongst the warehouses along the waterfront in Sunset Park, Brooklyn. It houses the majority of detained, pretrial defendants facing charges in the Southern and Eastern Districts of New York. At the MDC, defendants and their counsel are generally able to meet in small private rooms, while corrections officers patrol the area monitoring the meeting through large windows in each room. The rooms are fairly soundproof, and the conversations are not monitored, although there have been some rare exceptions where Courts have authorized the use of listening devices in these rooms under Title III of the Electronics Communications Act. Legal visitors are searched upon entry, and defendants are usually strip-searched before and after legal meetings.
But the Bureau of Prisons did not deem these security procedures sufficient for Maxwell, a person accused of non-violent crimes, with no prior criminal history and no serious disciplinary infractions while incarcerated. Instead, as detailed in counsel’s letter, Maxwell’s attorney meetings were held under the “under the constant watch of four to five guards” who used “a camera on a tripod focused on Ms. Maxwell and counsel while recording audio and video” of the meeting. After the meeting was over and the attorneys left, Ms. Maxwell was falsely accused of receiving legal papers during the meeting and was subjected to retaliation by corrections officers who seized and reviewed her confidential legal papers and reprimanded her while standing “knee to knee” with her as she used the toilet.
Ms. Maxwell was doing exactly what she was supposed to: meeting with her attorneys to prepare for trial and reviewing sensitive, confidential legal papers provided to her by the government pursuant to law. That the guards treated her this way only moments after her attorneys departed sends a clear message to Maxwell (or any other defendant in a similar position) that they must choose between pressing their right to prepare and defend their legal case or being subjected to intimidation and harassment by jail staff. No one should be forced to make this decision. If the presumption of innocence means anything, citizens accused of crimes must be accorded a fair opportunity to participate in their legal defense. Until we have substantial reform to our federal jails, the idea that a person is “fully able” to prepare for trial while incarcerated will remain a legal fiction. We should demand more.