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Case 1:20-cr-00330-PAE Document 309 _ Filed 07/01/21 Page2of3 Honorable Alison J. Nathan July 1, 2021 Page 2 Mr. Markus has made multiple statements to the media in the past few months.” On May 11, 2021, the Government emailed the defendant’s counsel of record in this case and expressed concern about Mr. Markus’s statements, citing Local Rule 23.1. Defense counsel did not respond. Most recently, on June 30, 2021, Mr. Markus authored an Op-Ed in the New York Daily News.? The Op-Ed compared the defendant to Bill Cosby and argued that this case should be dismissed in the wake of Mr. Cosby’s release from prison. The Op-Ed claims that Jeffrey Epstein’s non-prosecution agreement is binding in this District, but that “[t]he trial court, just like the trial court and intermediate appellate court in Cosby’s case, has agreed to let the government out of its deal.” The Op-Ed further claims that this case is “extremely weak” and asserts that “[a] jury should reject those flimsy and stale charges.” The Op-Ed also identifies Mr. Markus as “Maxwell’s appellate counsel.” Other news outlets have subsequently issued articles regarding the Op-Ed.* B. Relief Is Warranted Under Local Rule 23.1 Local Rule 23.1 generally prohibits extrajudicial statements of opinion that a reasonable person would expect to create “‘a substantial likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.” SDNY Local Rule 23.1(a). The Rule further provides, in relevant part, that statements of “opinion as to the accused’s guilt or innocence or as to the merits of the case or the evidence in the case” are among those that “presumptively involve a substantial likelihood that their public dissemination will interfere with a fair trial or otherwise prejudice the due administration of justice.” SDNY Local Rule 23.1(d)(7). The Rule applies to all statements made by lawyers “in connection with pending or imminent criminal litigation with which they are associated.” SDNY Local Rule 23.1(a). Furthermore, the Rule provides that the Court “may issue a special order governing such matters as extrajudicial statements by parties and witnesses likely to interfere with the rights of the accused to a fair trial by an impartial jury ....” SDNY Local Rule 23.1(h). Mr. Markus is plainly governed by Local Rule 23.1, because he is not only “associated” with this criminal case, but he is also counsel of record in the defendant’s appeals in connection with this matter. Mr. Markus’s comments to the media—most egregiously, the Op-Ed—were clearly in violation of Local Rule 23.1. Not only did his statements directly comment on the merits of this case, but they did so in a manner designed to appeal directly to the pool of potential jurors 2 See Ben Feuerherd, Feds Detail Ghislaine Maxwell’s ‘Enhanced Security Schedule’ In Prison, N.Y. Post (May 5, 2021), https://nypost.com/2021/05/05/ghislaine-maxwell-on-enhanced-security-schedule-lockup-feds/ (quoting Mr. Markus); David Oscar Markus, Ghislaine Maxwell Should Be Released: She Should Await Her Trial Outside Confinement, N.Y. Daily News (Feb. 24, 2021), https://Awww.nydailynews.com/opinion/ny-oped-ghislaine-maxwell- should-be-released-20210224-xocbnloc25exflbqbaf6fp76he-story.html (Op-Ed authored by Mr. Markus). 3 See David Oscar Markus, Bill Cosby is Free; Ghislaine Maxwell Should Be, Too, N.Y. Daily News (June 30, 2021), http://www.nydailynews.com/opinion/ny-oped-cosby-maxwell-free-202 10630-gqlcesn6yczaivp5h727x73lfzu- story.html (Op-Ed authored by Mr. Markus). 4+ See Louis Casiano, Bill Cosby Ruling Should be Used to Free Ghislaine Maxwell, Her Lawyer says, Fox News (July 1, 2021), https:/Avww.foxnews.com/us/bill-cosby-free-ghislaine-maxwell; Daniel Villarreal, Bill Cosby Ruling Shows Why Ghislaine Maxwell Should Be Freed, Her Lawyer Says, Newsweek (June 30, 2021), https://www.newsweek.com/bill-cosby-ruling-shows-why-ghislaine-maxwell-should-freed-her-lawyer-says- 1605828. DOJ-OGR-00004808