By Dan Portnov
(photo from USAToday.com)
In perhaps the biggest news story of a slow August, Jeffrey Epstein apparently hung himself in his cell at the Metropolitan Correctional Center (MCC) in Manhattan early Saturday morning.[1] Epstein’s suicide launched multiple conspiracy theories (one was even re-tweeted by the President) as well as incredulity that prisons don’t have better suicide prevention policies in place. Less covered, however, is what will happen to the seemingly endless legal proceedings surrounding Epstein. The rosters of his defense teams and the government attorneys investigating him contained many impressive names.
Now that Jeffrey Epstein is dead, what are all the lawyers supposed to do?
United States v. Jeffrey Epstein (SDNY 2019)
The sex-trafficking conspiracy charges against Epstein, unsealed upon his arrest in July, will be dropped. It is common practice for federal prosecutors to dismiss criminal cases against deceased individual defendants. This will be done with the filing of a nolle prosequi (Latin for “not willing to prosecute”) declaration, which will request Judge Richard Berman’s leave to no longer pursue the case.[2]
The dismissal of the sex-trafficking conspiracy against Epstein means that dozens of victims will never get a chance to face their tormentor, or see him adjudicated in open court. Still, all signs point to the larger investigation continuing. In July, FBI agents raided Epstein’s Manhattan mansion and on Monday, just two days after his death, the FBI raided his home in the U.S. Virgin Islands. It’s possible that the evidence seized in his homes may inculpate others in sex-trafficking or other illicit conduct.
(As a side note: Since he appears to be the sole homeowner, Epstein alone had standing to challenge the search warrants executed on his homes and to move to suppress the evidence found. Future defendants will not be able to block that evidence from trial on Fourth Amendment grounds.)
Victims v. Estate of Jeffrey Epstein (2019?)
Not only will Epstein’s death not stop his victims from suing him for a variety of harms, it will actually speed up the process. Previously, at least some of the victims were waiting until the criminal case resolved before suing Epstein. (Nearly all judges presiding over a civil case where there is a parallel criminal case featuring the same underlying conduct will stay discovery in that civil case.) Now they will go forward against his estate, estimated by his lawyers to be worth $559 million as of July.
Epstein’s death likely makes the victims’ suits easier for several reasons. First, Epstein himself is not around to assist in his own defense. His memory and command of details would have been highly valuable to his defense attorneys. Second, it is unclear whom the executor and beneficiary(ies?) of his estate might be and how vigorously they will want to fight. Without a personal stake, the Epstein estate might look to settle cases quickly. Finally, traumatized victims will be able to tell their stories without him in the courtroom (or deposition), alleviating the fear of facing him again.
New York recently passed the Child Victims Act (CVA). The CVA extends the statute of limitations for minors who suffered sexual abuse until that person reaches age 55. And today (August 14) begins a one-year look-back period in which allows victims of sexual abuse to sue their abusers no matter how long ago the abuse took place. At least one Epstein victim’s lawyer said that she would file suit today.
Department of Justice Office of Professional Responsibility Investigation
DOJ announced in February that its Office of Professional Responsibility (OPR) had “opened an investigation into allegations that department attorneys may have committed professional misconduct in the manner in which the Epstein criminal matter was resolved [in 2008].” This was in response to Congress calling for a look into the unusual plea deal that Epstein struck with the Southern District of Florida US Attorney and the State’s Attorney’s Office, which followed an investigative reporting piece from the Miami Herald.
The biggest name to get caught up in OPR’s investigation is the former Secretary of Labor Alexander Acosta, who helped broker the 2008 deal as U.S. Attorney. The immediate uproar following Epstein’s July arrest caused Acosta to resign his post. Depending on what OPR finds, he and others in his former office may also be referred to their state bar association for discipline.[3]
Investigations into the Federal Bureau of Prisons
Both the FBI and DOJ’s Office of Inspector General (OIG) will investigate the circumstances surrounding Epstein’s death. Meanwhile, the warden of MCC has been reassigned and two staff members placed on leave.
Having two DOJ components investigate a third (MCC is part of the Federal Bureau of Prisons which is an agency within DOJ) may signal some “home-team bias,” but this may just be the public’s best opportunity to learn how Epstein had the opportunity to kill himself days after being on suicide watch. The FBI’s investigation will focus on potential criminal conduct while OIG will examine internal policies and procedures and MCC staff’s adherence to each.
A major secondary benefit of these investigations would be the improvement of mental health services at FBOP and better suicide prevention techniques.
Congressional Investigations
At last, we come to Congress. Outcries from members of Congress have been plentiful and suggest that at least one committee will open an investigation into Epstein’s death. The House Oversight Committee appears to be an early favorite. This could have beneficial results. Congress absolutely should look into the abysmal conditions at federal prisons, including the near-complete lack of mental health resources.
Conclusion
One thing almost everyone agrees on is that Jeffrey Epstein’s death is a terrible event. It robs his victims and the public of seeing justice done. It means that he won’t be able to identify any other high-profile (or low-profile) victimizers. It highlights the inhumanity and inadequate supervision of our nation’s prisons. And finally, it assures that legions of lawyers will be wrangling over the fallout for years to come.
[1] We had written about Epstein only two weeks ago, noting that he was injured in his cell. It was later revealed as a possible suicide attempt.
[2] For those interested in what this type of nolle pros looks like, here is Osama bin Laden’s from 2011.
[3] DOJ OPR investigations are administrative, not criminal. OPR’s investigation may cause a current DOJ employee to be reprimanded, suspended or fired. It may also refer to local bar authorities for discipline.