freedom is a precious thing and the ability to defend that freedom when it's on the line is the most misspent unfortunately the lame maxwell hasn't had that opportunity and the district court erred by ordering pr child detention for the lame max a fifty nine year old woman with no criminal history who is accused in a case that involves decades old allegations that were only brought after geoffrey died in the government's custody but elaine maxwell is not jeffrey epstein for the past ten months she has been detained in horrific conditions that make it impossible for her to prepare for trial even though as the government agree she is not a danger to the community and even though the government has not provided any evidence in support of its proper not even the names of the accusers and the judge has simply assumed that the strength of the evidence is strong based on the allegations in the indictment so what if i'm suggesting then that there needs to be a mini trial no of course not just solve and there need not be a mini trial but a proffer in this case the government simply said the indictment states x y and z and that's the problem with the government's reliance here is no real meaningful proffer that's been provided second she can't meaningfully prepare for trial because of the condition she's under for example she's kept up at night every fifteen minutes with lights shine in her eyes so that they can check her breathing she's not suicidal there's no evidence she suicidal why camera on her so that's why councils unable to meet with her in person forgetting putting aside that you're between plexiglas and a small card table without the ability to really review things there's a camera on council and just last week another district judge in the southern district of new york granted a compassionate release motion astaire sharon hatcher do the extreme lot down conditions at m d c this is for an inmate that's not only the conditions that and for an inmate that is convicted and does not need to prepare for trial and delay maxwell is presumed innocent and the court has the ability to order her temporary release under th two i so that she can prepare d for trial and that's what we're asking for here we just want a fair opportunity a fair chance so that she can get ready for the trial of her life the government ha said that it wants to put her in jail for the rest of her life and yet she can't even meet with counsel she's stuck trying to prepare for trial over a video screen like this imagine trying to do that it's really not right especially when they proffered no evidence as to the strength of the case they said for example they have a diary but those seven pages of one diary don't even mention the lame x well it shows exculpatory evidence not in copa tory evidence my up my five minute thank you may it please the court my name is laura pomeranz and i'm an assistant united states attorney for the southern district of new york i represent united states on appeal and i also represent united states in the proceedings below defense counsel has tried to make a number of points i'd like to start by frank what is and is not before the panel the defendant has sought bail on three occasions and in three detailed decisions rendered after lengthy and thorough oral argument and multiple rounds of briefing the district court out that detention was appropriate judge nathan did not commit clear error in finding three times that the government established by a preponderance of the evidence that the defendant is a risk of flight and that no conditions could reasonably assured her appearance in court what is up front of this panel is whether judge eight and his findings are clearly erroneous and i'd like to interject a question if i may one of the central aspects of the defendant's position is that she is subjected to very difficult conditions including shining a light neuron is every every fifteen minutes or i don't know how often that night because she's viewed as a suicide risk  what is the basis for viewing her as a suicide risk and has that been evaluated by a by a neutral by a neutral medic when a psychic psychiatric consultant honor but my understanding is that the accommodations that have been made for ms maxwell are based on b o p s assessment of the defendant and her security in the security of the institution this is my understanding is that defense is not suggesting that she be housed in the general population they in fact appear to agree that the best way to ensure her safety is nathan is on top of the conditions of confinement she has been supervising all of these the opi procedures and to each sent that there are concerns i raised by the defendant i'm she is he able to raise those issues done but as i mentioned the defense counsel has had multiple opportunities and has taken his opportunities to write to the court about the conditions of confinement and has done is there any reason why it shouldn't be done is there any reason why why at her expense it shouldn't be engage and independent psychiatrist of the courts choosing to evaluate whether she's a suicide risk and if the court if there's if she's not then things like shining a flashlight in her eyes every fifteen minutes during the night perhaps it would not be done at the court's direction your hon parties in terms of why it shouldn't be done i i i appreciate the court's question i understand that this is something that in terms of whether this is something that should be  i would i would want to give it some additional thought but you are just defense counsel has not requested and so i understand the court's questions but the m p c is taking the step one of the main complaints is one of the main complaints of the defendants briefing is that she is being improperly treated as a suicide risk in a manner that that makes her life makes it doesn't allow her to sleep and makes it very difficult for her to prepare and they say there's no reason for it except for the fact that jeffrey epstein committed suicide in the bureau of prisons doesn't want to risk another embarrassment to itself which is understandable on the part of the bureau of prison but is perhaps a necessary december two thousand and twenty opinion that she does not believe that the conditions of confinement are uniquely onerous to this defendant she has been intimately aware of the of the circumstances under which the defendant has been detained and she has been against the need but the nature of the offenses and the history and characteristics of this particular defendant and so she is aware of the circumstances under which the defendant has been confined she has been actively managing those circumstances and the access defense counsel has the defense has to discovery as her attorneys and she has helped ensure that the defendant has extraordinary access to her counsel and to discovery and so i do think it's important to note for this court that she has had more time than any other inmate at the m d c to review her discovery she has thirteen hours a day seven days a week that's ninety one hours a week to review  discovery and during that time she is access e mail with her counsel calls with defense counsel legal defense access she also has access to the no conference for five hours a day every weekday that's twenty five hours a week  if the accommodations are insufficient defense counsel has been instructed by the court to confer with the government and ask for relief as needed which defense counsel has done access and so the government understands that it has to help ensure that she is meaningfully equal to assist reponse will in preparing her defense eats not the case that that she has to be able  institution the idea that she has an iron mask that wraps around her head to block out the light is wrong she tries to use either a sock or a a towel to block out the light on her own it's not wrapped around her head and you can imagine trying to keep that on your eyes at night so that the guards don't wake you every fifteen minutes to say that and i know that the government never answered the question about whether b o p has said she suicidal the reason is b o b has never said that he has never come out and said that elaine maxwell suicidal because she's not they do this for the reason that judge of all said which is they don't want an embarrassment like they had with jeffrey epstein but that's not a reason to treat someone inhumane conditions so that they can prepare for trial there should be is it correct that she is allowed to prepare approximately ninety one computer where she can review documents with her lawyers over a screen but that's impossible to prepare for trial number one when you're getting no sleep and number two when you're trying to prepare for inmates seems to be who may be in the same situation i understand you or your argument based on the lack of the amount of time that's lapsed but you know there are any number of one million documents so the yes there's a number of items that are unique and i'm glad you asked the question number one of course she's trying to do this during a pandemic so she can't meet with her lawyers in a room and spread out the documents she's trying do it over d a video screen that's the st thing the nd thing is under the condition she's facing no other inmate in the country is facing the conditions of confinement so she's trying to prepare during a pandemic over a video screen without sleep without all of the things that a regular inmate would get and i think that the last thing that's really unique like a few things one is the allegations in this case are decades old so it provides even another challenge but  the last thing that's unique your honor is that the bail package that she's proposed is also unprecedented and shows that she's not a risk of flight so so those things together make this a perfect case for releasing her under and forty two i temporary release so that she can prepare for trial which is asking again for a fair shot where she can get a good night's sleep print some documents search the documents meet with her lawyers face to face we just want a fair shot she's presumed innocent of course i ask you before the district judge have you raised the issue before the district judge of her being having a light shined in her eyes every fifteen minutes making it difficult or impossible for her to sleep you have to and the and the issue of if you think it is an issue of her not being allowed a a a proper face  mask with an elastic behind so that it could cover her eyes that she will not be awakened by the like of you raise that with the district judge and we've certainly raised the the light in her eyes every night and we've asked for hearings and we've asked for an explanation from the bureau of prisons as to why they're doing this none of that has been provided and the court has never held that lower court has never held a hearing where it has summoned a bureau of prisons official to answer questions as to why this is being done why there's a camera on her twenty four seventh's even when she meets with counsel i met with her thursday night they had a camera on us in the visiting room the whole time it was impossible to have a lawyer client meeting with her because they were camera following her around even when she needs with counsel and with audience so we were whispering in the room so that nobody could hear is not the camera was on the outside of the glass but we had to whisper they followed her around with this camera it's strength of the government's case and again that goes back to argument that no evidence has been supported supports the proffer that the government has made the government simply said look there's an indictment and it's a speeding indictment and there's a number of accusers so that corroborate each one corroborates the other that is not what corroboration means and of course the law is very clear that an indictment is not evidence and a jury will be instructed a that the indictment is not evidence and b that the number of allegations should not she could also just nathan also pointed out the significant foreign countries the significant financial resources and i know that there was a dispute about this but  that she was in after for a period and i understand your argument that the government was well aware of rich she was she was but there are significant issues with the a significant do and that's what she found judge let me address each of those points one she was at her home in new hampshire so i'm not sure how that evidence is at risk of flight she could have gone overseas but she didn't she stay here and she's a u citizen she's offered to renounce her foreign citizenship and she is offered to put up all of her money for bail purposes and to have the little left monitored by a federal judge a former federal judge i'm not sure what else she could they require something more than just saying the evidence is strong and so we would we would ask for a wheelbarrow if they call i want to i want to explore that with you they're saying there's three eyewitnesses and we're going to testify and then they describe the test so what more do you think needs to happen you disclaimed the requirement of a hearing at which these people testified so what do you think is required well a number of things your honor one is the government has said that there is evidence to back up what those witnesses are saying that's not true at least nothing has been provided to the court to demonstrate that what those people are saying is true number two at a hearing where the government would at least call a witness or provide the statements those statements have not been provided to the court all the government has said is in the indictment these people allege it so that at a bare minimum the government should have to provide re proffer is not enough it has to be meaningful and backed up and in the la fontaine case for example after a three day hearing the government provided affidavits tape recordings transcripts in the mark a split was sort of like this one where the government just said here's our proffer this court said it was a closed case but because the defense didn't object to the conclusory proffer the court will go into reverse here we've objected all along and said no evidence has been provided to back up these statements i think what's critical judge sullivan is that none of these witnesses and this is really important none of the these witnesses these accusers mentioned the way maxwell for twenty years they didn't mention the lane maxwell when they made complaints to the police and police reports twenty years ago it's only after epstein died that an indictment was brought and that these accusers came forward and that shows a real weakness not strength in the government's case so on a week decades all case something more should have to be provided then just the indictment itself thank you very much thank you