« Another reminder that substantive reasonableness review has very little bite | Main | After swift cert denial in Rivera-Ruperto, should I just give up hoping for an improved Eighth Amendment to check extreme non-capital sentences? »

February 24, 2019

After special favors and CVRA violation, what should happen to Jeffrey Epstein and his problem prosecutors?

The Miami Herald has done extraordinary work looking behind Jeffrey Epstein too-sweet deal, and it reports effectively here on the significant federal court ruling last week that prompts the question in the title of this post.  Here are the details:

Federal prosecutors, under former Miami U.S. Attorney Alex Acosta, broke the law when they concealed a plea agreement from more than 30 underage victims who had been sexually abused by wealthy New York hedge fund manager Jeffrey Epstein, a federal judge ruled Thursday [available here].

While the decision marks a victory for crime victims, the federal judge, Kenneth A. Marra, stopped short of overturning Epstein’s plea deal, or issuing an order resolving the case.  He instead gave federal prosecutors 15 days to confer with Epstein’s victims and their attorneys to come up with a settlement. The victims did not seek money or damages as part of the suit.

It’s not clear whether the victims, now in their late 20s and early 30s, can, as part of the settlement, demand that the government prosecute Epstein. But others are calling on the Justice Department to take a new look at the case in the wake of the judge’s ruling.

"As a legal matter, the non-prosecution agreement entered into by the U.S. Attorney’s Office in the Southern District of Florida does not bind other U.S. Attorneys in other districts. They are free, if they conclude it is appropriate to do so, to bring criminal actions against Mr. Epstein and his co-conspirators," said lawyer David Boies, representing two of Epstein’s victims who claim they were trafficked by Epstein in New York and other areas of the country.

Earlier this month, the Department of Justice announced it was opening a probe of the case in response to calls from three dozen members of Congress. Nebraska Sen. Ben Sasse, the Republican chairman of the Senate Judiciary Oversight Subcommittee, on Thursday asked the DOJ to re-open Epstein’s plea deal. "The fact that it’s taken this long to get this far is heartbreaking and infuriating," said Sasse. "The Department of Justice should use this opportunity to reopen its non-prosecution agreement so that Epstein and anyone else who abused these children are held accountable."...

Brad Edwards, who represents Courtney Wild — Jane Doe No. 1 in the case — said he was elated at the judge’s ruling, but admitted he is troubled that it took 11 years to litigate. He blamed federal prosecutors for needlessly dragging it out when they could have remedied their error after it was brought to their attention in 2008. "The government aligned themselves with Epstein, working against his victims, for 11 years,’’ Edwards said. "Yes, this is a huge victory, but to make his victims suffer for 11 years, this should not have happened. Instead of admitting what they did, and doing the right thing, they spent 11 years fighting these girls."

Marra, in a 33-page opinion, said prosecutors not only violated the Crime Victims’ Rights Act by not informing the victims, they also misled the girls into believing that the FBI’s sex trafficking case against Epstein was still ongoing — when in fact, prosecutors had secretly closed it after sealing the plea bargain from the public record.

The decision follows a three-part series published by the Miami Herald in November, "Perversion of Justice," which detailed how federal prosecutors collaborated with Epstein’s lawyers to arrange the deal, then hid it from his victims and the public so that no one would know the full scope of Epstein’s crimes and who else was involved.

The 66-year-old mogul lured scores of teenage girls from troubled homes — some as young as 13 — as part of a cult-like scheme to sexually abuse them by offering them money to give him massages and promising some of them he would send them to college or help them find careers. Future president Donald Trump, former president Bill Clinton, lawyer Alan Dershowitz, Prince Andrew and other world leaders, scientists and academics were friends with Epstein, who also owns a vast home in Manhattan, a private jet, and an island in the U.S. Virgin Islands, where he now lives....

Instead of prosecuting Epstein under federal sex trafficking laws, Acosta allowed Epstein to quietly plead guilty in state court to two prostitution charges and he served just 13 months in the Palm Beach County jail. His accomplices, some of whom have never been identified, were not charged.

Epstein’s victims were not told the case was closed until it was too late for them to appear at his sentencing and possibly upend the deal. Two of them filed a lawsuit in the U.S. District Court for the Southern District of Florida in 2008, claiming that prosecutors violated the Crime Victims’ Rights Act, which grants victims of federal crimes a series of rights, including the ability to confer with prosecutors about a possible plea deal....

Acosta, who was nominated as labor secretary in 2017, issued a written statement through a spokesman: “For more than a decade, the actions of the U.S. Attorney’s Office for the Southern District of Florida in this case have been defended by the Department of Justice in litigation across three administrations and several attorneys general. The office’s decisions were approved by departmental leadership and followed departmental procedures. This matter remains in litigation and, thus, for any further comment we refer you to the Department of Justice.”

Michelle Licata, who was molested by Epstein when she was 14, said the judge’s decision was "a step for justice." But she still questions why federal authorities have failed to open a new case against Epstein, given that more victims and evidence has come to light in recent years. "They should see if they can prosecute him for something. I mean, really prosecute him — instead of giving him 13 months where he was allowed to come and go as he pleased. I just want to see him face some consequences for what he did."

Francey Hakes, a former federal prosecutor, said the Crime Victims’ Rights Act doesn’t spell out any punishment for violating its terms, so it would set a precedent to re-open Epstein’s agreement. "Epstein will surely argue he complied with the agreement, relied upon it, and plead guilty under it so it can’t be overturned in fairness to him," she said. "I will be very interested to see what the parties say the remedy for the violation should be. Ultimately, it is simply shocking the Government went to the lengths they did to keep the victims in the dark in order to make a serious predator’s high priced defense team happy. Justice should not, and does not, look like this."

This commentary by two former federal prosecutors asserts that there should be lots of consequences from the new ruling in this matter:

Outside of the Justice Department, it also seems untenable for Acosta to be allowed to remain in his position as head of the Department of Labor — a federal agency with significant role to play in combating and prosecuting human trafficking cases and protecting the rights of minors. He should be fired or resign.

Most significantly, Epstein and anyone else involved in this crime need to be held fully accountable and the rights of the victims fully vindicated. Judge Marra has already ruled that the CVRA authorizes “the rescission or ‘reopening’ of a prosecutorial agreement, including a non-prosecution agreement, reached in violation of a prosecutor’s conferral obligations under the statute.” Judge Marra seems to be suggesting that Epstein’s agreement be voided and the federal investigation reopened. (Sen. Ben Sasse, R-Neb., has called for DOJ to do just that.)

It is always tricky to Monday morning quarterback another prosecutor’s decision: There are often facts and circumstances known only to the prosecutors that factor into whether to proceed with charges, take a case to trial or even enter into an NPA. However, given the many deficiencies in the NPA — most notably the systematic exclusion of victims from the resolution of this case, DOJ should reopen the investigation, and assign it to another U.S. attorney’s office or an arm of the DOJ.

The only way to preserve the integrity of this case is for a clean set of eyes to review the facts and ensure that justice is done.

UPDATE: For some additional commentary on this case and the latest CVRA opinion, check out Paul Cassell's posting at The Volokh Conspiracy, "Prosecutors Violated the Rights of Jeffrey Epstein's Victims" and Kent Scheidegger's posting at Crime and Consequences, "The Crime Victims Rights Act and the Epstein Case."

February 24, 2019 at 10:50 PM | Permalink

Comments

Ahhhh, the power of money.

Posted by: tommyc | Feb 25, 2019 9:42:00 AM

Just another case of sex offender exceptionalism. I can't believe that a judge would serious say that a plea agreement that a defendant is complying with can be negated when there has been no misconduct by the defendant. Talk about blaming the victim!

Posted by: uugh | Feb 25, 2019 9:43:59 PM

@uugh The billionaire who sex trafficking miners has become the victim? If there were literally dozens of cases the feds could have made against him, but did not, then there has been misconduct - even if it was not charged at the time because of an inappropriate deal.

Posted by: Paul | Feb 26, 2019 9:42:22 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB