Why did prosecutors shelve a 53-page federal indictment against a child predator? Why did they allow Epstein, who was kept detained Thursday in his New York case partly because of the serious nature of his crimes, to plea to a lesser state crime involving only one victim and a 13-month jail sentence? Why did they give him such a lenient deal?
Here are some of the red flags in that case, which was overseen by then-U.S. Attorney Alexander Acosta, who has resigned as labor secretary.
First, federal prosecutors typically only give an NPA to a defendant much less culpable than others in a crime. Think of a low-level drug runner with mitigating circumstances, perhaps drug addiction. That person may get an NPA, but not a drug kingpin like El Chapo. To give a principal wrong-doer like Epstein an NPA is unheard of, especially when the crime involves sexual abuse of children.
In sex trafficking cases, the key evidence typically comes from the victim-witness. If a victim-witness does not cooperate with law enforcement, there can be cause for concern that the government won’t be able to prevail at trial. But this was not a one-victim case. There were at least 36 victims identified at the time.
When you have problems of proof, the answer is not, “Let’s let him go, and promise not to charge him.” The answer is, “Let’s keep investigating. Let’s gain the trust of, and work with, the victims.” Also, there is no statute of limitations with sex trafficking of minors so it was not as if prosecutors needed to do something quickly.
Second, each victim’s case should have been addressed on its own merits. Imagine if you were the crime victim. You speak to an FBI agent trusting that the agency would go after the guy who assaulted you. But the agent says: “Well, he assaulted someone else, too, and that person doesn’t want to cooperate. So, we’re dropping your case, too.” That’s what happened here. Agents were working with victims in other states when the NPA in Florida was entered into. Does that make sense?
Third, this NPA was non-standard and had terms I’ve never seen before. The Justice Department has a standard NPA that prosecutors are supposed to use. That form makes it clear that the agreement only binds the U.S. attorney’s office signing the agreement. It does not bind other U.S. attorney’s offices. Epstein’s NPA was vague in its binding effect and didn’t follow the standard language, making it appear to bind other U.S. attorney’s offices. What’s more, the agreement gave non-prosecution coverage to Epstein’s co-conspirators, who were not even part of the NPA. This is unheard of.
Fourth, that the agreement was negotiated and done in secret where the victims were not informed of the NPA also runs counter to Justice Department policy and applicable statutes. A Florida judge has ruled that failing to inform the victims violated the federal Crime Victims’ Rights Act. So why weren’t the victims informed? Why were there efforts to keep them in the dark? Why do you need to hide what you are doing, if what you’re doing is above-board?
I hope the public and especially the victims get answers. Justice demands it. At least through the case in the Southern District of New York, Epstein’s victims will see justice done. As U.S. Attorney Geoffrey Berman put it when he announced the charges against Epstein: “The victims must be heard.”
Kan M. Nawaday, an attorney in private practice, is a former prosecutor with the U.S. Attorney’s Office for the Southern District of New York.