How Much Justice Can You Afford?

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Being a Look at the Problems with Prosecuting a Billionaire

I apologize at the outset that I’m about to wander right off into the legal weeds, somewhere I try not to go on Medium even when addressing legal topics. This time, I just do not see any way to avoid the expedition into esoterica because our Secretary of Labor, yours and mine, Alex Acosta, had a press conference in an attempt to beat back charges that he scratched the back of an allegedly child abusing billionaire in a manner that borders on complicity in the crimes he was sworn to prosecute to the best of his ability.

By now, most people who watch the news have at least a vague understanding that Acosta’s time as a U.S. Attorney was marred by what some call a corrupt plea bargain that allowed the child abusing billionaire, Jeffrey Epstein, to skate on charges that could have put him in the Club Fed for the rest of his biological life. The gist of Acosta’s defense was that he did the best he could with the tools he had and if Epstein was not punished appropriately, the fault lies with Florida prosecutors.

Acosta claims that it was only by dint of his heroic efforts that Epstein had to serve some jail time and, as importantly, had to register as a sex offender. Acosta’s presser was a clinic in the defensive use of smoke and mirrors, and it’s part of the value in the defense that I cannot expose the smoke and mirrors without attempting to teach non-lawyers the surface of some deep legal concepts on the fly. The press conference made it easier to just divide the room into Trump haters gunning for another of Trump’s cabinet appointees and Trump fans who understand it’s hard to make America great again when most of your cabinet has been chased out of office for stealing or for ethical lapses.

The issue is whether Acosta abused the public trust so egregiously in 2008 that he should not have been entrusted again over a decade later. That’s a matter of opinion and I do not intend to state mine when my goal is to bring facts into the light that require an accounting. Facts, not opinions.

The first fact is that there was no plea bargain. There was what we call in the trade a “non prosse” — short for “non-prosecution agreement” and it’s only a slight abuse of lawyer Latin to cite the phrase nolle prosequi. The purpose of a non prosse is to reduce to writing certain understandings that led the U.S. Attorney to refrain from filing charges that appeared to be appropriate at the time. Usually, those understandings involve cooperating with the government in prosecuting others and refraining from any further criminal conduct. For our purposes, it’s critical to understand that the prosecutor is not saying “can’t prosecute” but rather “won’t prosecute.”

The Epstein non prosse did things I’ve never seen before. Because my first career was as a state court judge, my experience with U.S. Attorneys is less than a raw recitation of my years in criminal law would indicate. Anything I say about “normal practice” of criminal law in the federal courts comes with that caveat, and I invite you to speak with lawyers in your circle if I say something you find hard to believe.

Epstein was charged with being at the center of a broad conspiracy to obtain sex from underage girls. The conspiracy touched Epstein’s Florida estate acquired near Donald Trump’s Mar-a-Lago back when the two billionaires were running buddies and Epstein’s New York residence in one of the largest privately owned townhouses in Manhattan. No allegations have surfaced involving Little Saint James — the island, entire island Epstein owns in the U.S. Virgin Islands — or the Zorro Ranch near Stanley, New Mexico or Epstein’s apartment in Paris (France, not Texas).

Oops, there was reportedly a pleading in a civil suit brought by Virginia Roberts Giuffre (one of Epstein’s alleged victims) where she names the Zorro Ranch and Little Saint James as locations where she was forced to have sex. She claimed this happened once with Harvard Law Professor Alan Dershowitz, a member of the “dream team” of lawyers who got Epstein the non prosse and also a member of the original dream team that walked O.J. Simpson on a murder charge with DNA evidence. Dershowitz denies any sex, let alone force, and has vowed to have the law license of any lawyer who claims otherwise. As to his former client, Dershowitz told CBS: “If I had ever seen Jeffrey Epstein in any inappropriate situation with an underage girl, I would’ve terminated my relationship and turned him in. No way…”

Giuffre’s lawsuit was settled out of court in 2017 on terms that are, of course, not public.

Dershowitz also points out, correctly, that this case contains tabloid catnip. In addition to the Harvard Law professor and two presidents — one of them sitting — alleged victims have named Britain’s Prince Andrew. There are also big names from Hollywood: Kevin Spacey, Woody Allen, Chris Tucker. The names could have been harvested from the flight manifests filed by one of Epstein’s jets. The tabloids, perhaps predictably, refer to Little Saint James as “Island of Sin” and the Boeing 727 that is the crown jewel of Epstein’s fleet of aircraft as “Lolita Express.”

Back to then U.S. Attorney Acosta and the Florida case that was non prossed. What Acosta got for calling off the feds was a plea to two counts of soliciting a minor for prostitution in the Florida courts with an understanding the billionaire would serve “some” jail time and be required to register as a sex offender.

Epstein was sentenced to 18 months and served 13 months on “work release,” the most liberal terms of work release I’ve ever encountered. From his private cell in the Palm Beach County lockup, Epstein was allowed to be absent 12 hours a day; six days a week. I guess his fortune required a lot of watching. Secretary Acosta claimed that Epstein got a kiss on the cheek rather than at least a slap on the wrist because the Florida prosecutors dropped the ball.

Former Palm Beach County State Attorney Barry Krischer’s response could only be described (by me) with the highly technical legal term: Horseshit! But since I promised to keep my opinions to myself, I will just trot out the fact that if Acosta did not like what Florida was doing he already had a federal indictment drafted that never went to a grand jury.

This comes back to stuff I’ve never seen before. As part of his understanding with Epstein’s defense team, Acosta agreed to and did pull the plug on an ongoing FBI investigation. The plug-pulling makes his whole defense of the deal absurd. He did not bother to attempt defense of having agreed to immunity for unknown persons involved in a huge conspiracy before the investigation was over.

Acosta claimed that some of the victims were flakey and others did not want to testify at all. He did not say why he did not allow the FBI to continue following the daisy chain of victims like the Miami Herald did after the FBI (on Acosta’s orders) backed off. The girls were encouraged to find more girls and the FBI was nowhere near finished interviewing the possible victims found by interviewing the victims they already had.

To keep the Florida federal cases alive, all Acosta had to do was what is normally done by a U.S. Attorney sitting on a good case that needs more work but the FBI is not finished. Nothing. Let the Florida courts do whatever they are going to do while you lie behind the log and let the FBI do what the FBI does so well — or did before the current POTUS started saying the FBI is run by dirty cops.

With another apology, I depart for the legal weeds. Most Americans understand they cannot be tried twice for the same crime unless there is a hung jury or a reversal on appeal. What they don’t understand is that you can’t be tried twice by the same sovereign. Under our federal system, every state and every Indian tribe is a sovereign entity. Federal jurisdiction extends into every state and into Indian country, but the federal jurisdiction does not oust the jurisdiction of state courts or tribal courts over the same matter.

Sadist that I am, I liked to draft exam questions that located a crime in a park on the Navajo Reservation called after a geographic feature, Four Corners. You can stand in one spot and see into four states and two Indian reservations and the federal jurisdiction overlays it all. Because you can normally prosecute a crime either where the act took place or where the result took place, you can see what I could do with a homicide at Four Corners. The perpetrator fired from soil located in New Mexico and the Navajo Reservation and hit the victim in Colorado and the Ute Reservation but the victim staggered a distance and fell dead smack on the line between Utah and Arizona. Fiendish, huh?

Jeffery Epstein’s child abuse machine is much simpler, involving, so far, only Florida, New York, and perhaps the Lolita Express. Epstein is currently in jail on an indictment returned in New York that appears to mirror similar conduct in Florida. Should the New York case prove up, girls molested between 2008 and 2019, if any, can thank both Jeffery Epstein and Alex Acosta.

And that last remark of mine is a fact, not an opinion.

It is also a fact that a federal judge has held that Alex Acosta wrongfully withheld both the negotiations and the disposition of the Florida federal cases from the victims.

It is also a fact that a major player in the Democratic Party, Manhattan District Attorney Cyrus R. Vance Jr., heads the office that tried to get Jeffrey Epstein’s sex offender status reduced from the most restrictive to the least restrictive, a move that would allow Epstein to get off the registry entirely in the future.

Justice Ruth Pickholz denied the prosecutor’s motion, and was quoted in The New York Times as telling Mr. Vance’s minion, “I have to tell you, I’m a little overwhelmed because I have never seen a prosecutor’s office do anything like this…”

I haven’t either, but I’m just a retired state court judge. What do I know?

I know I promised I would not inject my opinions, so forgive me just one after I’ve set out the facts. My opinion is that this is not Republican justice; this is not Democratic justice; this is money justice.

Written by

Steve Russell is enrolled Cherokee, a 9th grade dropout, retired judge, associate professor emeritus of criminal justice, and (so far) a cancer survivor.

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