Sunday, July 14, 2019

Double Jeopardy In The Epstein Case

First things first: A new grandson is being baptized today, so I'll be away most of the time. 

Commenter Cassander wrote:

Off topic, but Andrew McCarthy has just published his opinion that Epstein can successfully argue double jeopardy against a new indictment in the SDNY.

I responded in a series of comments, noting that I've been wondering about that and more or less assuming that the SDNY claim that they weren't bound by SD-Florida's scandalous non-prosecution agreement would carry the day. McCarthy disagrees. I claim no expertise in this area and, in fact, Double Jeopardy (DJ) was very recently the subject of heated disagreement in the SCOTUS, in which we saw the spectacle of Gorsuch and Ginsburg--an unlikely combination under most circumstances--strongly disagreeing with Alito and (a reluctant) Thomas. With that in mind, here is my response comment, which will have to serve on this busy (but very happy) day. I make no apodictic statements, but express a hope:

I've read McCarthy, and I've also read Jonathan Turley, whom McC cites: Jeffrey Epstein forces Washington to deal with embarrassing connections. McC makes strong arguments, but he leaves out something that I hope will be important--and should be if the interests of justice are to furthered. Here's my hope. 
As McC recognizes, this case is a travesty of justice. My hope is that, as I mentioned above and as Turley also mentions, since Acosta violated the CVRA--the provisions of which bear directly on any plea deal process--courts will decide to void it and allow federal prosecution. I think this would be the better solution, rather than jiggering with DJ itself.

[CVRA = Criminal Victims' Rights Act.]
Turley also points out (and expands a bit on) what I did:
"The fact that there are only two counts in the new federal indictment this week may indicate that New York prosecutors are looking for crimes not covered by the earlier agreement, including new charges connected to photos of allegedly underaged girls that were reportedly found in the safe of Epstein."
BTW, Turley explains Barr's recusal, which I don't agree with but which is probably SOP:
"Barr has recused himself from an ongoing review of the plea agreement under the Southern District of Florida because his old law firm, Kirkland and Ellis, represented Epstein, although Barr himself had no role in the case."


  1. I had wondered about this myself.

    And while Turley and McCarthy both make effective debating points, I remain concerned about big picture--which has nothing to do with Epstein.

    The government has galactic power and infinite resources. It can crush you if it just breezes past your window. I know, personally, good people who have been so crushed. Epstein is swine. No one disputes it.

    My view? Swine that he is, the feds had their chance. They are now doing angels on the head of a pin. On that front, the Gamble decision gave me hives.

    I have no love for federal prosecutors. Scooter Libby, Martha Stewart, ad infinitum. I don't trust them. I see them as a merciless, mindless goon squad, doing the bidding of a government that is dying to become a dictatorship.

    So, in this case, my sympathies are with the fox, not the hounds, even though the fox is despicable.

    What I see here, and I may darn well be completely wrong, I'm no legal expert (then again, neither is morally-challenged SJW Roberts), is double jeopardy. The government can dress it up any way it wants.

    That's what governments do, from Beijing to Teheran, when they come for you.

    The government played its cards. Epstein played his. He won. Finding cute ways out of a deal is what men in power do when they want to legally cut your throat.

    Sidebar: tell me how the behavior here is any different from what SDNY is trying to do to Trump.

    Again, I may be far wrong here. But even the scent of double-jeopardy gets my moter running.

    1. I get where you're coming from, and when the Gamble case was decided I thought--good for Gorsuch. But this is different. The non-pros agreement was made without complying with the law.

      Re your larger point, Mike Cernovich was saying: they came with SWAT teams for Manafort and Stone, but look how politely they arrested Epstein at the airport. Speaks volumes.

    2. @ Titan
      @ mark

      My 2 cents reaction.

      I'm not sure non-compliance with the Crime Victims' Rights Act trumps (sorry) Epstein's double jeopardy rights. Wouldn't this be consistent with the rule that the criminal should “go free because the constable has blundered".

      I'm also concerned that Barr is making a mistake with his partial recusal. I understand his connection to the SDFla case through Kirkland is remote, but, again, it is the appearance of the thing that counts. However, if he is going to (properly) recuse himself from the SDFla review, I'm not sure how he cannot recuse himself from the SDNY case. I fear the two are inextricably entwined. Certainly the double jeopardy analysis is entwined. I hope Barr doesn't live to regret his technical decision-making. We need him to be purer than Caesar's wife for the s**tstorm that's coming.

    3. First, re Barr's recusal. I didn't include it, but Turley pointed out the close connection and intimated that recusal from one, in the circumstances, amounts to recusal from the other as well.

      However, re the CVRA, it's the exact opposite. The criminal went free already DIRECTLY because of the law breaking of the constable. The court in this case would therefore be asked to remedy that injustice to the victim.

    4. Re CVRA...Respectfully, I don't think so. Its too bad for the victims (although they have, and have had, civil remedies) but the constable (Acosta) screwed up and the criminal (Epstein) goes free. Let's hope the government can find new crimes not barred by double jeopardy...

    5. Or, asking the question a different way, has there ever been a reported case where a NPA was overturned by reason of the government's failure to comply with the CVRA?

    6. No. You've got that backwards. The idea of that adage is that IF the constable screws up THEN the criminal goes free. Setting the criminal free is the REMEDY for the constable's wrongdoing. In this case, as I said, it's the reverse. The criminal went free ONLY BECAUSE the constable set him free. The criminal, Epstein, going free is not in this case a remedy for the wrongdoing--it IS the wrongdoing.

    7. Mark, the constable (Acosta) didn't set the criminal (Epstein) free. Epstein pled guilty to two state felonies related to prostitution and served a 13-month prison sentence. He will undoubtedly argue that the prosecutor's failure to comply with the CVRA does not invalidate his agreement, which he will say is tantamount to a plea agreement. You don't have to agree with this analysis. Epstein's lawyers will certainly agree with it.

      I would say that Acosta really f'ed this case up. The really interesting question is: why?

    8. "(Acosta) didn't set the criminal (Epstein) free."

      He did in the sense of letting him off on the real crime. The state charge that he pleaded to was a parody of what the real crime was.

  2. A Plausible Theory Of What Jeffrey Epstein Was Actually Doing

    Filming rich guys with underage girl and then blackmailing them into investing in his hedge fund.

    1. Or just sending the money to off shore accounts. Nobody seems to have seen any activity on his part that would be expected from an active hedge fund.

    2. @ Mike
      @ mark

      ...Or maybe he's just a garden-variety (albeit super-sized) crook...

  3. I think, in general, when you plea to avoid charges one of the clauses you have to agree to is that you reveal all other illegal activities for which you might have faced charges- in other words, you have to come clean to get the non-prosecution agreement, and failure to do so will result in the agreement being withdrawn.

    Now, the question is this- did Epstein reveal the activities he is being charged with in New York, and did the original investigation find these activities in 2007-2008? I don't know the answer to that question, and neither does McCarthy.

    1. Good point, and especially in light of the appeal for victims to come forward. While ~ 30 victims were identified years ago, the belief was that there were probably in the hundreds.