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January 7, 2015

Victim rights' back-story at heart of new Cassell-Dershowitz blood feud

Lots of criminal justice folks are buzzing about the extraordinary spitting match that has broken out between notable criminal law professors Paul Cassell and Alan Dershowitz.  Helpfully, Jacob Gershman has this effective Wall Street Journal posting which explains the interesting criminal justice issues that got this heavyweight fight started.  The piece is headlined "Behind Epstein Suit, a Tussle Over Due Process and Victims’ Rights," and here are excerpts:

The salacious allegations against Prince Andrew and Alan Dershowitz that surfaced in a federal lawsuit involving convicted sex offender Jeffrey Epstein have generated international attention.  Drawing less coverage is the lawsuit itself — a case with the potential to expand the rights of crime victims during federal investigations.

The lawsuit centers on a 2007 agreement the federal government made with Mr. Epstein, a Florida financier suspected of sexually abusing multiple underage girls.  Under its agreement with Mr. Epstein, who had been the target of an FBI probe, federal prosecutors promised not to bring charges against him in Florida if, among other conditions, he pleaded guilty to a state felony charge of soliciting an underage prostitute.  Mr. Epstein pleaded guilty to the state charge in 2008 and served about 13 months behind bars.

Two of Mr. Epstein’s alleged victims then filed suit against the U.S. government in 2008, claiming federal authorities violated their rights under a 2004 law by keeping them in the dark about the non-prosecution deal.  They want a federal court to invalidate the agreement, a position fiercely contested by the government.  The law in question is the Crime Victims’ Rights Act, a statutory bill of rights for victims of federal crimes.  Among other things, the law grants victims a “reasonable right to confer with the attorney for the Government in the case.”

The case exposes tensions between the due-process rights of the accused and the rights of victims.  Attorneys representing the plaintiffs, former federal judge Paul Cassell and Florida lawyer Bradley Edwards, say at stake “is whether a federal statute protecting crime victims rights can be ignored with impunity or, as we argue, whether instead real remedies exist for its violation.”

U.S. prosecutors say the government had no obligation to confer with the alleged victims. Since they never charged Mr. Epstein with a crime, they argue, the plaintiffs don’t qualify as victims under that 2004 law.  And even if that right existed, the government argues, the Constitution’s due-process guarantees bar prosecutors from reneging on their agreement with Mr. Epstein.

In making their argument, prosecutors have cited a Dec. 2010 opinion issued by the Justice Department’s Office of Legal Counsel, which provides legal advice to the president and executive-branch agencies.  The opinion states that the “rights provided by the CVRA are guaranteed” only after “criminal proceedings are initiated through a complaint, information, or indictment.”

In a 2011 ruling, the federal judge presiding over the case, Kenneth A. Marra, sided with the plaintiffs’ interpretation of the law, writing that the CVRA “clearly contemplates pre-charge proceedings.”  And in a 2013 order, rejecting a motion by the government to dismiss the case, the judge wrote that a non-prosecution arrangement may be “re-opened” if it were reached in “violation of a prosecutor’s conferral obligations under the statute.”

The plaintiffs’ lawyers allege that the government failed to meet those obligations. In court documents, they accuse the U.S. attorney’s office of concealing the agreement “to avoid a firestorm of public controversy that would have erupted if the sweetheart plea deal with a politically-connected billionaire had been revealed.”

January 7, 2015 at 10:05 AM | Permalink


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And a sweetheart deal it was. Wow. I'm wondering what the federal connection was in the first place though. Transporting or causing the transportation of the girls across state lines, I'm guessing.

Posted by: AFPD | Jan 7, 2015 12:50:32 PM

Casell is no friend of crime victims, he just uses them to get what he wants. However, on the narrow legal point at stake in the first half of this case I agree. The Justice Department did violate the law.

However on the second part he is wrong and Cassell's inherent malice shows through. It doesn't make any sense to hold the defendant guilty for a violation committed by the government. The defendant bargained in good faith. Why should the fact the government bargained in bad faith (or failed to bargain at all) with the victims be imputed to the defendant? That makes no sense. Cassll's argument is that otherwise there would be no "real remedies" for the victims.

First, that claim is circular because of course any remedy other than the one he wants isn't "real". More importantly, the Constitution demands more. If the defendant can be held accountable for the government's errors here then where is there any rational line? Everything will be imputed to the defendant for the sake of the "victims".

Posted by: Daniel | Jan 7, 2015 1:49:02 PM


I think the argument is that just like there are things the government is forbidden to do because of constitutional limitations there are things the government can forbid itself to do, and that just like a constitutional violation the act is of no legal force the same is true of prosecutions where the legislation is not followed.

I am not buying this argument however because Congress has absolutely no power to force the executive to pursue charges, and that is what Cassell's argument would require.

I think he has a better (though still weak) argument when it comes to the fraud case then Epstein, because in that case there was at least a federal prosecution, where the entire point of the Epstein case is that there wasn't any federal prosecution, the feds were considering charges but changed their minds.

Posted by: Soronel Haetir | Jan 7, 2015 9:13:06 PM

"Congress has absolutely no power to force the executive to pursue charges, and that is what Cassell's argument would require."

While I agree with this statement I don't agree that this is the premise of Casell's argument. His argument is not that the government has to prosecute; his argument is that the plea deal is null because the government did not consult. In theory, even under Casell's own argument, the government could reopen the plea then listen to the victims and then offer the same deal all over again. The problem with that from the defendants point of view is that it exposes him to jeopardy again and one of the things he bargained for was foreclosing that jeopardy.

Casell is not arguing that the feds must prosecute--though it is obvious he feels that if the truth came out the feds would be publicly shamed into a prosecution.

Posted by: Daniel | Jan 8, 2015 2:55:07 AM

Judge Cassell advocates victim rights, to boohoo in ex parte testimony without opportunity to cross examine. The Supreme Court falsely calls this an attestation, and allows it. For example, these prostitutes received $10,000 for a few hours work. If they were slaves, it was to their own greed. If cross examination were allowed in other victim attestations, they could be asked if the murder of their alcoholic, violent father markedly improved their lives by ending his abusive conduct. Therefore the murderer should be commended and not get the death penalty. Half murder victim, for example, have alcohol levels beyond the legal limit.

Eventually, Judge Cassell will advocate a lawyer advocate for victims, to help navigate the complex legal system. He is a stealthy, disgusting rent seeker for the lawyer profession.

What does a real advocate of victim sound like, besides like me? Bill Otis.

1) The right to be left alone; 2) to not become a crime victim because all the criminal are deceased at an early age; 3) and the right to fight back, and kill an attacker without getting prosecuted by a vile, pro-criminal feminist prosecutor and its male running dogs. To my knowledge, Judge Cassell has never supported these substantive and actually real victim right.

He is called conservative leaning in his politics. He also proves the point, rent seeking trumps all ideology in the law. And, Scalia is a leader in the dismantling of mandatory sentencing guidelines. Same idea, the rent.

Posted by: Supremacy Claus | Jan 8, 2015 9:11:59 AM

What about money damages?

Posted by: anon | Jan 8, 2015 2:47:26 PM

The article explains the aspects of the case well. There is a blog on Turleyblog about this and I could not quite get all the aspects square from reading the topic. It seems to be pushing so called victims rights too far here.
Now we have Casell and the other guy suing Dorkowitz in court. What a mess.

Posted by: Liberty1st | Jan 9, 2015 12:16:03 AM

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