The media has widely credited the Miami Herald’s “Perversion of Justice” series with “exposing” the unprecedented non-prosecution agreement (“NPA”) in which former U.S. Attorney (and current Trump Labor Secretary) Alexander Acosta agreed to allow billionaire Jeffrey Epstein to avoid federal prosecution for running an international child sex trafficking operation. But the true credit for exposing the shocking details surrounding the “sweetheart” deal belongs to three of Epstein’s victims and their victims’ rights attorneys, who have been quietly challenging the agreement for nearly a decade.
Even before Acosta’s team and Epstein’s high-powered lawyers started discussing the NPA, Acosta’s office was notified that at least three of Epstein’s victims were represented by attorneys who fully demanded their rights under the Crime Victim Rights Act (“CVRA”) of 2004. The CVRA is one of the country’s strongest protections for victims. Among other things, it requires prosecutors to confer with victims and their attorneys before making any major decision in the case. Nonetheless, we now know that Acosta’s office and Epstein’s lawyers intentionally concealed the NPA from the victims and their attorneys and that Acosta’s office intentionally misled them into believing that the federal prosecution was moving forward long after the NPA took effect. When the victims’ attorneys finally learned of the NPA, they filed a lawsuit challenging the agreement as a violation of the CVRA. The victims’ attorneys—former federal judge Paul Cassell and former Florida sex crimes prosecutor Brad Edwards—are two of the top victim’s rights lawyers in the country.
Most of the information contained in the Miami Herald’s series about the Epstein deal came directly from the Cassell/Edwards lawsuit, and the information did not come easily. The U.S. Attorney’s Office in Florida and the main U.S. Justice Department fought the victims at every turn—arguing that the victims lacked any rights under the CVRA, opposing the victims’ attempts to obtain communications between Acosta’s office and Epstein’s lawyers, and generally throwing up every roadblock possible to keep the details of the deal under wraps. The victims and their pro bono advocates were undeterred and litigated the case through years of such hurdles, with multiple trips to the appellate court and back.
As a result of these efforts, we learned the following:
- Acosta personally agreed to the broad terms of the NPA at a meeting with Kirkland and Ellis lawyer Jay Lefkowitz in October 2007;
- Acosta allowed Epstein’s lawyers to dictate the terms of the NPA, which cut off all federal investigation of the true extent of Epstein’s crimes, immunized Epstein and anyone involved with Epstein’s sex trafficking operation from prosecution, allowed Epstein to serve 13 months in a county detention center with six-day 12-hour “work release” at a luxury Palm Beach office (in violation of Florida law), and prohibited disclosure of the deal to the victims, their attorneys, or the media;
- Epstein’s “dream team” of lawyers, including Alan Dershowitz, Kenneth Starr, Roy Black, former U.S. Attorney Guy Lewis and others, went on the “offensive,” using private investigators to dig up dirt on survivors, their families, and even members of the U.S. Attorney’s Office and their families; and
- Epstein’s private network of friends and supporters includes President Donald Trump, former President Bill Clinton, Prince Andrew, Duke of York, and an array of other reputable individuals.
The victim’s rights case against Epstein continues even amid the new charges. On February 21, 2019, United States District Judge Kenneth A. Marra ruled in favor of the victims, finding that Acosta’s U.S. Attorney’s office violated the CVRA by “conceal[ing] the existence of the” agreement and by “mislead[ing] the victims to believe that federal prosecution was still a possibility.” Doe v. United States of America, Civ. Act. No. 08-CIV-80736, *28 (S.D. Fla. Feb. 21, 2019). The court directed the parties to submit briefs on the appropriate remedy, and the Justice Department has persisted in its opposition to the victims’ efforts to invalidate the non-prosecution agreement.
The Epstein case perfectly illustrates the point that victims from marginalized groups suffer from many of the same biases that plague criminal defendants. The victims in this case were mostly poor, uneducated, and struggling with addiction and other common issues associated with poverty. Epstein targeted these children precisely because they were poor and vulnerable. That Epstein’s “dream team” trolled these children’s background to paint them as “willing participants” is nothing short of shameful. Even more shameful is the fact that federal prosecutors—either implicitly or explicitly—bought into the notion that these “troubled” children were simply not worth fighting for.
While Epstein’s ability to marshal top legal talent and to call in political favors at the highest levels are extraordinary, the weaknesses his lawyers exploited are pervasive throughout the criminal justice system. Prosecutors have unchecked power to decline to prosecute cases that do not involve the “perfect victim.” All the biases and prejudices that lead to injustices against defendants are fully operable against victims. Victims who are poor, members of minority groups, LGBTQ, and from other marginalized groups find their cases dismissed or treated less seriously than others.
Three women’s bravery and fortitude, and that of their attorneys, chipped away both at prosecutors’ broad discretion to ignore victims and at defendants’ and their attorneys’ ability to silence and intimidate victims. Thanks to their unbelievable bravery, one of the country’s greatest injustices is on the path to being reversed.