Detroit Sex Crimes Attorney Weighs in on Epstein, Ghislaine Maxwell, Prince Andrew

By Detroit Sex Crimes Lawyer Brian J. Prain

| September 22, 2020

Key Takeaways from Infamous Sex Crimes Cases

People constantly ask for my opinion on the many sensationalized sex crimes cases because of my profession as a Detroit sex crime attorney. In the wake of the rape convictions of stars like Bill Cosby and Harvey Weinstein, and the apparent jail suicide of Jeffrey Epstein, there appears to be no end in sight for media cases alleging sexual assault against celebrities and public figures.

Recently, I came across a New York Daily News article titled "Stars Accused of Sexual Assault and Harassment." I was shocked at some of the names I saw on the list, such as Charlie Rose, Dustin Hoffman and even women like Melanie Martinez. While some names weren't too surprising, I eventually ran out of time and still hadn't finished scrolling through the entire list. I felt like it would be shorter to name which celebrities have not been accused of a sex crime.

As a Michigan sex crimes attorney defending criminal sexual conduct (CSC) charges, I'd like to weigh-in on the Jeffrey Epstein, Ghislaine Maxwell, and Prince Andrew saga unfolding in the New York federal court right now, which has its roots planted in other jurisdictions across the U.S. and world. Granted, the Epstein, Maxwell, Prince Andrew chronicle has no direct relationship to the Michigan criminal sexual conduct cases I defend.

Nevertheless, these high-profile cases can serve as powerful springboards for relevant discussions among those facing Michigan CSC charges. Such cases are important because they affect the opinions, biases and attitudes that jurors bring into the courtroom in Michigan criminal sexual conduct cases.

Jeffrey Epstein, Ghislaine Maxwell and Prince Andrew, the Duke of York

In case you've been living under a rock for the past few months (which I admit doesn't feel like too much of a stretch since COVID-19 happened), Jeffrey Epstein was an extremely wealthy American financier who owned a private island, "Little St. James," in the U.S. Virgin Islands. He reportedly used it as a haven for sex trafficking underage girls to prominent stars and public figures who reportedly engaged in illegal criminal sexual conduct with these underage girls. I won't write names here, but the list of figures who allegedly visited the island and engaged in these crimes is rather striking, as they came from the highest levels of governmental prominence and power in our world.

Epstein pleaded guilty back in 2008 to reduced state charges of soliciting prostitution, served a one-year jail sentence with work release and was a registered sex offender for some time. After his July 2019 arrest on more recent allegations, Epstein reportedly committed suicide in his New York jail cell on August 10, 2019, while he awaited trial. This provoked widespread controversy over his death and left Maxwell and Prince Andrew as the primary targets of the investigation.

The only suspect names we will mention here are the two at issue: Ghislaine Maxwell and Prince Andrew, the Duke of York. Ghislaine Maxwell was reportedly Epstein’s friend and got charged with six federal sex crimes in July 2020 for allegedly recruiting underage girls and using threats and other inducements to force them to perform sexual acts with public figures who visited the island, one of whom is allegedly Prince Andrew.

Ghislaine Maxwell was officially indicted on federal charges in New York and is being held without bail as she awaits trial, while Prince Andrew is being asked by the FBI to cooperate further in their investigation.

As a side note, if these reported crimes — acts of sexual penetration or sexual contact with an underage person — were committed in Michigan, the following charges would ensue:

Criminal Sexual Conduct 1st Degree, MCL 750.520b: Punishable by life in prison if the crime includes sexual penetration of someone under 13
Criminal Sexual Conduct 3rd Degree, MCL 750.520d: A felony punishable by 15 years in prison if the crime includes sexual penetration of someone over 13 but under 16
Criminal Sexual Conduct 2nd Degree, MCL 750.520c: A felony punishable by 15 years in prison if the crime includes sexual contact with someone under 13
Criminal Sexual Conduct 4th Degree, MCL 750.520e: A 2-year high misdemeanor punishable by two years in prison if the crime includes certain sexual contact with someone over 13 but under 16
Any combination of some or all of the above, in addition to other sex crimes such as accosting a minor

The Fifth Amendment Right to Remain Silent

I certainly intend to follow this story and offer commentary on the many interesting legal issues at hand, such as whether Epstein’s negotiation for immunity on behalf of Ghislaine Maxwell in his 2008 case was legal or not. But right now, I will focus on Prince Andrew because his situation relates to a question that many of my clients ask in Michigan CSC investigations: "Should Prince Andrew cooperate with the FBI and allow them to interrogate him about the sex crimes allegations against him?"

One source recently commented that "Prince Andrew must cooperate" with the FBI since Ghislaine Maxwell has been charged. I take this to be an opinion statement because he is not legally required to cooperate with the government or law enforcement in any way at this time. Under the U.S. Constitution, a person suspected of a crime, especially one like criminal sexual conduct or any other sex crime, has a right to remain silent and not say a single word to anyone, even at trial. Thus, they should exercise their 5th Amendment right against self-incrimination.

Most Americans are aware of their 5th Amendment privilege to some extent, and can probably even repeat the Miranda warnings verbatim if they've watched enough TV shows like Cops, NYPD Blue and CSI. The confusion seems to concern the second part of the 5th Amendment, which states that a defendant’s silence cannot be used against them in court. People often talk when they know they shouldn't because they mistakenly think that their silence indicates guilt.

While I'm happy that people are trying to think critically, they are wrong. For example, the U.S. Supreme Court said in the 1949 Watts v. Indiana case that “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statements to the police under any circumstances." This states nothing about the person’s guilt or innocence; it says no uncertain terms, no statements and any circumstances.

A practical example of this is that in every Michigan criminal sexual conduct jury trial where the defendant chooses not to testify, the judge reads the Michigan Criminal Jury Instruction 3.3, entitled “Defendant Not Testifying.” It reads:

"Every defendant has the absolute right not to testify. When you decide the case, you must not consider the fact that [he/she] did not testify. It must not affect your verdict in any way."

The same logic applies even during the initial police investigation before any CSC charges are filed. For detailed information on this topic, I recommend reading "Should You Talk to the Police (When You're Accused of Criminal Sexual Conduct)?" and "Can My Police Interrogation be Used in Court?" The articles establish that if you are being accused of criminal sexual conduct in Michigan or anywhere, do not speak to the police. Period.

Even when you deny all wrongdoing and maintain your innocence, and think you are giving the perfect statement and genuinely being honest, you could still make mistakes. Those mistakes may contradict other facts, allowing a skilled prosecutor to twist the story into asserting your guilt because you “intentionally” lied.

On the one hand, you may exercise your right to remain silent, such as by saying "Respectfully, sir/ma'am, I'm not going to make any statements or answer any questions" and repeat it as many times as necessary regardless of any threats, so your situation cannot get worse. On the other hand, you could open your mouth with the best of intentions and land yourself in prison. I am sure you can conclude which option is the intelligent and obvious one.

It’s worth noting that police or testimony statements aren’t the only things that could destroy your case, as any statement made to anyone could do so. For instance, Epstein made the smart decision to decline a formal interrogation by the FBI, apparently on the advice of his attorney.

However, Prince Andrew gave a lengthy and controversial interview with Emily Maitlis of the BBC. He may have done this to clear his name and improve his situation, but many viewers believe that he looks and sounds guilty, and may have incriminated himself. You can play a pretend juror and judge for yourself after watching it.

But could the FBI use this against him in court?

If Prince Andrew were facing charges in Michigan, they probably could use his interview against him since there is an exception to the hearsay rule that allows the prosecution to use the defendant’s alleged statement against him. Consider another standard in the Michigan Criminal Jury Instruction 4.1, called “Defendant's Statements as Evidence Against Defendant.” It states the following:

The prosecution has introduced evidence of a statement that it claims the defendant made.
Before you may consider such an out-of-court statement against the defendant, you must first find that the defendant made the statement as given to you.
If you find that the defendant did make the statement, you may give the statement whatever weight you think it deserves. In deciding this, you should think about how and when the statement was made, and about all the other evidence in the case. You may consider the statement in deciding the facts of the case and if you believe the defendant's testimony in court.

As you can see, there are strict rules as to how a jury can give weight to the defendant's alleged statements in court, including a preliminary decision as to whether they want to believe the defendant made the statement in the first place. But if a defendant is on video, perhaps a BBC video broadcast to the entire planet, it would be hard to deny that they are in the video and speaking those words.

Here is the kicker: Prince Andrew isn't currently being charged with anything! He is legally presumed innocent, despite his BBC interview. A criminal accusation, and even an actual charge, is nothing more than an unproven allegation, but the world seems to have forgotten that fact.

The bottom line is that it is not legally required for Prince Andrew to cooperate with or speak to law enforcement, and neither should you.

A person accused of criminal sexual conduct should only decide whether or not to give a statement to the police after they get a detailed cost/benefit analysis with a skilled and experienced Michigan sex crimes defense lawyer. When a person chooses to give a statement on the advice of their attorney, it is usually in exchange for some type of favorable promises that prosecutors are willing to put in writing.

It all comes down to receiving the right legal advice because many people in prison for criminal sexual conduct ended up there, in part, because of their own words. With that, I rest my case!

Accused of Committing Criminal Sexual Conduct in Michigan? Get Defense.

If you or someone you care about is facing criminal sexual conduct charges in Michigan, the first step toward getting the right advice is contacting a top-ranked lawyer. Michigan sex crimes attorney Brian J. Prain specifically concentrates his practice on defending those accused of criminal sexual conduct in Metro Detroit. Brian is very highly recognized and has received many honors and awards, including:

Contact Prain Law, PLLC anytime at (248) 731-4543 or online using our contact form.

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