Jeffrey Epstein

Prosecutors Violated the Rights of Jeffrey Epstein's Victims

Today a federal judge held that federal prosecutors concealed from the victims the non-prosecution agreement with Jeffrey Epstein -- in violation of the Crime Victims Rights Act. Now the issue is what remedy exists.

|The Volokh Conspiracy |

Today U.S. District Judge Kenneth Marra released an important decision in a case that Brad Edwards and I have been litigating for several victims regarding the federal Crime Victims' Rights Act. The thirty-three page decision, found here, holds that the federal prosecutors handling the Jeffrey Epstein sexual abuse case violated the rights of Epstein's victims by keeping the deal they reached with him secret. The decision explains that the prosecutors improperly made "a decision to conceal the existence of the [non-prosecution agreement] and mislead the victims to believe that federal prosecution was still a possibility." The judge has directed that the case will now proceed to the issue of what remedy, if any, should be awarded to the victims because of the prosecutors' violation of the victims' rights.

Because this case remains in active litigation, I won't speculate about future steps or otherwise comment on how the case might develop. But given that I have blogged and written about some of the legal issues previously, it does seem appropriate to say a few descriptive words about the ruling.

The factual background recounted in the opinion can be briefly summarized. Between 1999 and 2007, Jeffrey Epstein sexually abused more than 30 minor girls, including my clients, Jane Doe 1 and Jane Doe 2. The federal government (e.g., the FBI) investigated the case for violations of federal law. Ultimately prosecutors in the U.S. Attorney's Office for the Southern District of Florida reached a non-prosecution agreement ("NPA") with Epstein, blocking not only his prosecution for federal sex crimes but also that of certain co-conspirators, in exchange for Epstein's agreement to plead guilty to two low-level Florida state offenses. From the time the federal government began investigating Epstein until the time it concluded the NPA agreement, the Office never conferred with the victims about the NPA nor told them that such an agreement was under consideration.

Later, when Epstein's sexual abuse victims became concerned about what was happening in their cases, Mr. Edwards and I filed a lawsuit alleging that the Office had violated the victims' rights under the federal Crime Victims Rights Act (CVRA). After more than ten years of difficult litigation against the prosecutors, today the district court ruled in our favor that the prosecutors had violated the victims' rights under the CVRA. The court explained that prosecutors had improperly concealed the NPA and misled the victims that federal prosecution was still a possibility:

Here, it is undisputed that the Government entered into a NPA with Epstein without conferring with Petitioners during its negotiation and signing. Instead, the Government sent letters to the victims requesting their "patience" with the investigation even after the Government entered into the NPA. At a bare minimum, the CVRA required the Government to inform Petitioners that it intended to enter into an agreement not to prosecute Epstein. Although the binding effect of the NPA was contingent upon Epstein pleading guilty to the state charges, that contingency was out of the control of the Government. The Government's hands were permanently tied if Epstein fulfilled his obligations under the NPA. Thus, Petitioners and the other victims should have been notified of the Government's intention to take that course of action before it bound itself under the NPA. Had the Petitioners been informed about the Government's intention to forego federal prosecution of Epstein in deference to him pleading guilty to state charges, Petitioners could have conferred with the attorney for the Government and provided input. In re Dean, 527 F.3d 391, 394 (5th Cir. 2008) (there are rights under the CVRA including the "reasonable right to confer with the attorney for the Government"). Hence, the Government would have been able to "ascertain the victims' views on the possible details of the [non-prosecution agreement]." Id. Indeed, it is this type of communication between prosecutors and victims that was intended by the passage of the CVRA. See United States v. Heaton, 458 F. Supp. 2d 1271 (D. Utah 2006)(government motion to dismiss charge of using facility of interstate commerce to entice minors to engage in unlawful sexual activity would not be granted until government consulted with victim); United States v. Ingrassia, No. CR-04-0455ADSJO, 2005 WL 2875220, at *17 n. 11 (E.D.N.Y. Sept. 7, 2005) (Senate debate supports the view that the contemplated mechanism for victims to obtain information on which to base their input was conferral with the prosecutor concerning any critical stage or disposition of the case).

Particularly problematic was the Government's decision to conceal the existence of the NPA and mislead the victims to believe that federal prosecution was still a possibility. When the Government gives information to victims, it cannot be misleading. While the Government spent untold hours negotiating the terms and implications of the NPA with Epstein's attorneys, scant information was shared with victims. Instead, the victims were told to be "patient" while the investigation proceeded.

The court also rejected various defenses that the prosecutors had attempted to interpose. For example, the prosecutors had alleged that the CVRA only obligates prosecutors to answer inquiries from crime victims and does not impose a duty on prosecutors to give notice about case developments. The court found this position was "in direct contravention of the intent of the CVRA" and irrelevant because the victims could not make inquiries "as long as the Government chose to conceal the existence of the NPA from the victims."

Ultimately the court concluded that "[t]he expansive context of the CVRA lends itself to only one interpretation; namely, that victims should be notified of significant events resulting in resolution of their case without a trial." Here, due to deliberate decisions made by the prosecutors, that did not happen. Accordingly, the court ruled that "under the facts of this case, there was a violation of the victims' rights under the CVRA."

The court has directed that we now have 15 days to confer with the Government about how to proceed to the next issue of determining what remedy, if any, the court should apply in view of the prosecutors' violations of the victims' rights. The court has previously ruled that various remedies may be available to the victims, holding 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" and also authorizes "the setting aside of pre-charge prosecutorial agreements." See page 26 of the ruling (citing Doe v. United States, 950 F. Supp. 2d 1262, 1267 (S.D. Fla. 2013)). Mr. Edwards, co-counsel Jack Scarola, and I will now consult with our victim clients to determine what remedies they may wish to ask the court to impose in light of the court's finding that the victims' rights have been violated.

NEXT: Jury Duty

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  1. Since Prof. Cassell may be the best candidate to know, what do you think of England’s system of private prosecutions?

    1. The right of victims to be kept informed and to consult with prosecutors seems like a step in that direction. I don’t mind government prosecution nearly as much as I detest a government monopoly on prosecution. Victims should always have right of prosecution, with government stepping in only if no victims can prosecute (dead, missing, etc). I don’t mind victims declining to prosecute if, say, the criminal bought them off. If a criminal threatened them, that seems to me like a new crime in addition to being evidence of guilt in the original crime.

      1. Note that one feature of the English system in the 18th century, the Appeal of Felony, was that a convicted defendant could not be pardoned by the Crown?unlike in a criminal prosecution, the Crown was not a party to the case.

  2. I gather from “the setting aside of pre-charge prosecutorial agreements.” that the 10 year old NPA could go bye bye; that would be awesome. Be even better if the prosecutors were actually charged with a crime for wasting ten years due to their criminal behavior.

    But IANAL, just disgusted with the government’s monopoly on prosecution, and examples like this are why.

    1. It would be the decision that launched a thousand law review articles….setting aside a settlement agreement in a criminal case is going to have due process, double jeopardy, notice, collateral estoppel, and statue of limitation issues at the very least. Particularly when doesn’t even look like Mr. Epstein is a party to this lawsuit (Jane Doe vs U.S.), or did anything to relevant to the CVRA violation.

      Even in the civil context, it’s pretty rare to set aside a settlement agreement.

      1. I also was surprised to see that the defendant could possibly be charged…absent any indication that he took affirmative steps to deceive his victims re the NPA. But, whew; I think the sky is the limit in terms of punitive and actual damages…the ultimate party with deep pockets, and a court has a huge incentive to award massive damages, to deter future intentional (!!!!) bad acts by govt agents.

        Paul, what made this case drag on for a decade? Could you post here, or make a separate post, where you lay out a rough timeline of this case? In Children’s court, cases can take a long time to finally resolve. But that’s b/c we can keep a case till a kid turns 18. It’s not gonna take years to get an initial ruling, as seems to have happened in your case.

        1. “court has a huge incentive to award massive damages, to deter future intentional (!!!!) bad acts by govt agents.”

          Why would government employees care about a “massive” payment from the US treasury? Its not coming out of their pockets.

          1. Fair point.

        2. Too bad the judge can’t fire Acosta.

      2. Yeah. Probably not double jeopardy issues (as jeopardy didn’t attach because a jury wasn’t seated), but certainly due process, statute of limitations, and collateral estoppel are all live issues.

        I am usually not sympathetic to Prof. Cassell’s victim’s rights ideology, but he’s right that the Epstein agreement is outrageous and a clear violation of the statute. Nonetheless, it still seems like the courts would have a lot of problems with allowing prosecution after rescinding a nonprosecution agreement.

        1. Federal sex trafficking crimes haven’t had a SOL since 2002. If Epstein’s acts extend to 2007, there should be plenty of crimes that could be prosecuted without SOL issues.

    2. Wow… think about that a bit.

      If the NPA gets set aside does that mean Epstein can withdraw his guilty plea to state charges? I doubt it.

      This seems ripe for abuse – prosecution signs an NPA with a defendant in return for the defendant testifying or pleading guilty in state court or giving the location of a body. Then they say “Ooops… we didn’t notify the victims. NPA is null and void. Too bad you already fulfilled your obligations under the agreement.”

      I think the appropriate result here is severe sanctions against the prosecutors and the government. But not setting aside the NPA.

      1. Unless the State was also a party to the NPA, which seems doubtful, I don’t see any reason why he should be able to back out. In my (admittedly limited) understanding, the State plea deal is a separate agreement from the NPA, so the enforcability of the plea deal is unconnected with the NPA. Just like if you made a deal with someone else that involved giving me money, and they back out after you pay me, you shouldn’t expect to get your money back from me.

        Seems like there’s an easy way to avoid being scammed–demand proof that the government has complied with all of the necessary steps prior to signing. And I bet the kind of people who get NPAs typically have lawyers expensive enough to make sure that everything is on the up and up. At least when they want to.

        I also don’t think it’s particularly unusual for the law to hold private parties responsible for ensuring that the government has the authority to enter into an agreement. Perverse, yes, but not particularly unusual.

    3. Wow… think about that a bit.

      If the NPA gets set aside does that mean Epstein can withdraw his guilty plea to state charges? I doubt it.

      This seems ripe for abuse – prosecution signs an NPA with a defendant in return for the defendant testifying or pleading guilty in state court or giving the location of a body. Then they say “Ooops… we didn’t notify the victims. NPA is null and void. Too bad you already fulfilled your obligations under the agreement.”

      I think the appropriate result here is severe sanctions against the prosecutors and the government. But not setting aside the NPA.

  3. For some reason this post didn’t appear on the front page initially. I wonder why. I’d seen the next one, and the previous one, without this one.

    1. Regarding the timing of the post, I accidentally put in the wrong time when I posted it — so it ended up behind an earlier post. Sorry about the timing mistake.

  4. The NPA, of course, was not arrived at in the pursuit of justice, but instead in order to protect all the Important People, (Including at least one former President.) who Epstein likely could implicate in his crimes if sufficiently motivated.

    Given that, it’s hardly surprising that they’d have concealed it.

    1. One former, one current.

    2. I think you’re both jumping to conclusions about who specifically is being protected. This guy is scum, but association with scum does not guilt make.

      That being said, this is clearly special treatment due to being of the elite and I hope not only that the remedy is painful to the state, but that the press stay on this.

      1. There’s testimony from some of Epstein’s victims that it was more than just associating with the scum.

        1. Not that Google can turn up.

          1. And just exactly who decides what Google turns up?
            It is not like Google is an impartial conduit, and not a publisher making decisions about what is and is not shown, and the order thereof.

            1. That you’re not coming up with the testimony, and just carping about Google, does not make Brett’s assertion any more supported.

          2. 1)This is not a scandal I have followed at all; I had to google the name to find out who Epstein was.

            2)A couple minutes googling led me to at least one account that matches Brett’s. For example, google the phrase “numerous prominent American politicians, powerful business executives, a well-known prime minister, and other world leaders”.

            Those are apparently sourced from a “The Mirror”, presumably the Brit newspaper.

            3)I have no idea whether it’s a legit source; I was just QC’ing your google-fu 🙂

      2. “remedy is painful to the state”

        The “state” does not feel pain.

        Unless its sanctions against individuals [IDK if the act provides for this], having taxpayers pay damages is bad.

        1. Largely concur on that front – Bob; though fines may result in internal policies, when it comes to really creating a culture of reform, the state’s pocketbook is mostly immune from pain, so long as the press doesn’t cover the screw up.

          Direct liability is just not going to fly in this climate (lets aim at QI first), nor am I sure it creates the right incentives.

          Exclusionary rule or mistrial fixes the incentives, but at the cost of limiting the guiltys’ penalty…

        2. Would disbarment of the prosecutor be a possible consequence of such a case? Presumably that would require action by the Bar Association.

      3. I think you mean the federal government, not the state.

    3. Probably one former president, one current president, and one Harvard emeritus.

  5. OK, I think we can all agree that any punishment consistent with the Eighth Amendment would be laughably lenient for a monster like Epstein, but this is unjust.

    The prosecution grossly violates the law it is supposed to enforce and its punishment is… being excused from holding up an agreement it made?

    The defendant agrees to plead guilty to a lesser offense in exchange for leniency, so pleads, serves his time, and then, because the prosecution broke the law, is liable to be retried for the top counts?

    This is just wrong, wrong, wrong.

    I’d really like it to happen, but it’s wrong.

    1. Yep.

      It’s worth remembering that our whole criminal justice system relies on deals with defendants. We simply can’t try everyone. If every defendant arrested in the next 3 months demanded a speedy trial with no plea bargain, we’d probably end up having to set some of them free due to lack of jurors, lack of prosecutors and public defenders, and lack of courtroom space and judges.

      And for deals with defendants, they have to hold. Imagine if you were facing a crime and the prosecutor said: “We believe we have evidence that you committed crimes that could carry a maximum of 25 years in prison. We would like you to plead guilty to a lesser included offense of one of the crimes. We will dismiss the other charges. As a result of your guilty plea, you will be placed on formal probation for 5 years.”

      You reply, “sounds good”. You are ready to take the deal.

      Then the prosecutor says “Of course, after you take this deal and admit guilt, and do your probation time, if a Crime Victims’ group later convinces a judge that we offered this deal to you improperly and it was too lenient, the deal will be rescinded and we will then be able to put you on the dock and seek that 25 year sentence against you.” Would you still take the deal?

      As much as the facts of this case are distasteful, we can’t allow prosecutors to unwind unwise plea deals. If a plea deal is produced by corruption, the solution is to prosecute the prosecutors who were involved in the corruption.

      1. But isn’t the issue here (at least in the court’s telling) that the plea deal wasn’t merely unwise, but actually unlawful under the CVRA and thus void ab initio?

        1. No.

          Its seems what they are saying is once the deal was made they had an obligation to disclose it, rather than covering it up.

          1. They didn’t just have an obligation to disclose it after the fact. They had an obligation to disclose that they were considering it, so that the victims could give input into whether that was a good ideal. So the illegal part was there from the start.

      2. “If a plea deal is produced by corruption, the solution is to prosecute the prosecutors who were involved in the corruption.”

        That sounds fair, so long we don’t have career prosecutors investigating each other or letting each other off (with lenient plea bargains, maybe). Perhaps a special prosecutor for the rogue prosecutors?

        1. Absolute immunity. See Buckley v. Fitzsimmons, 509 U.S. 259 (1993).
          (Congress could explicitly pierce absolute immunity, but realistically, who is going to enforce it?)

          1. That’s civil immunity, not criminal immunity.

      3. Incidentally, I have learned (since writing the original comment) that the defendant and his counsel were aware that the victims were not being provided proper notice, and there is a strong suggestion that withholding notification was a tacit part of the agreement ? certainly, the government promised not to notify the press and not to release the agreement unless compelled to by FOIA or court order.
        Under those circumstances, one could argue that the defendant should not be allowed to profit from his conspiring with the prosecution to violate (again) the victims’ rights.

  6. The title is ‘prosecutors violate the rights…’
    So while there might not be a specific remedy for the people victimized by the prosecutors, perhaps there should be an accounting of the prosecutors criminal conduct.
    Just because the victim cannot be made whole again is not a reason to shrug and ignore the transgression of the wrongdoer. The prosecutors must become the prosecuted.

  7. I heartily condemn the kid gloves treatment Epstein and I would like to see both federal and state investigations to see how he could get such lenient treatment, because its such an outlier.

    However, I don’t think this case should have been prosecuted by the feds at all. The doj prosecutes about 1000 x as many cases as it should. Any case where there is substantially the same state prosecution available should be prosecuted by the state. Only crimes that transgress against federal interests enumerated in the constitution should be federally prosecuted.

  8. Man, your first paragraph here is awkward. It made it sound like there was some sort of possibility of the *victims* being prosecuted.

  9. This Conspirator seems too modest to mention that one of the relevant prosecutors (U.S. Attorney) has become quite the big fish — Labor Secretary Acosta.

    One wonders precisely how, on behalf of the clients, the Conspirator will request that Secretary Acosta be made accountable for this violation of the victims’ rights.

    1. I never agree with Rev. Art, but in this instance Acosta should be disbarred, fired, ruthlessly humiliated.

  10. “The judge has directed that the case will now proceed to the issue of what remedy, if any, should be awarded to the victims because of the prosecutors’ violation of the victims’ rights.”

    IF ANY??!!

    I have to remember the difference between a court of law and a hall of justice.
    The minimal remedy is incarceration of all prosecutors involved in the NPA until the twelfth of never. Along with fines equal to all their possessions including pensions.

  11. Not that I think the judge could order such a prosecution, but the right answer is to honor the NPAmfor Epstein (since he didn’t do anything directly wrong in it, setting aside the claims that he directed the underlying breach which would change the analysis) and proceed with a prosecution under 18 USC 241 for conspiracy between the prosecutors and Epstein and team.

    And since the overall conspiracy is to further various sex crimes, the 10 year limit on punishment goes out the window, and the new cap is now life. Really not sure how to calculate a sentencing guideline for this, but I’m sure the briefs on all sides of that would be amusing.

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