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Case 1:20-cr-00330-PAE Document 224 Filed 04/20/21 Page13o0f17 improbable that instructions would eliminate the obvious and substantial prejudice to Ms. Maxwell. Any reasonable, intelligent, jury cannot be instructed to ignore the following: e Ms. Maxwell was sued for defamation by an alleged victim because she called the alleged victim a liar. e The government necessarily believes that Ms. Maxwell, not the alleged victims in this case, is a liar, which is why the government charged her with perjury. e By implication, Ms. Maxwell’s lawyers here, arguing that she is innocent, should not be believed because they were complicit in the perjury. e Inconsidering whether the jury should convict Ms. Maxwell of enticing girls to travel to perform illegal sex acts the jury should ignore all of the underlying facts related to the defamation action including, for example, the 30 alleged victims, Epstein’s settlement, the CVRA litigation, Epstein’s, and Ms. Maxwell’s non- prosecution agreement. In addition, the government glosses over, via a footnote, enormous prejudice attendant to the perjury charges: Ms. Maxwell’s counsel of choice for five years also represented her in the defamation action. The deposition transcript and the perjury charges place the credibility of Ms. Maxwell’s lawyers at issue. The government obfuscates how it intends to establish materiality of the statements, but it is probable that the government will attempt to do so through the testimony of the civil lawyers who prosecuted the defamation action. Any rational jury would want, as a counter, testimony from the defending lawyers on the same topic. The government suggests that this is no problem, at least for the prosecutors, under NY RPC 3.7. We beg to differ. The question of disqualification arising from counsel’s status as attorney and witness in the same proceeding is premised on the so-called advocate-witness rule.> The rule, generally, is that counsel cannot maintain dual roles as advocate and witness in the same matter before the > For a discussion of the advocate-witness rule's origin and history, see Jeffrey A. Van Detta, Lawyers as Investigators: How Ellerth and Faragher Reveal a Crisis of Ethics and Professionalism Through Trial Counsel Disqualification and Waivers of Privilege in Workplace Harassment Cases, 24 J. Legal Prof. 261 (2000). DOJ-OGR-00003910