Two days ago United States District Judge Kenneth A. Marra ruled that allegations of sexual abuse against, among others, Prince Andrew and Alan Dershowitz were to be stricken from the court record.
The allegations are tangential to a wider lawsuit against the US Government about a plea bargain it reached with Jeffrey Epstein. A good general background can be found at the Wall Street Journal’s Law Blog.
Who is Jeffrey Epstein?
Jeffrey Epstein was a financier accused of sexually abusing underage girls in Florida. In 2007 Epstein reached an agreement with the US Attorney’s Office, a federal prosecution authority. He pleaded guily to two state felony charges of solicitation of prostitution and procurement of minors to engage in prostitution, and received an 18-month prison sentence. The US Attorney’s Office agreed not to prosecute Epstein or any potential co-conspirators for federal offences, and reached a non-prosecution agreement with Epstein in these terms.
What is the Case About?
The first thing to note is that this is not a lawsuit against Jeffrey Epstein. The Plaintiffs brought civil cases against him in a few years ago, which I believe were settled. This case is against the US Government, alleging that the non-prosecution agreement reached with Epstein was a violation of the Crime Victims’ Rights Act 18 U.S.C. § 3771 (CVRA).
This legislation gives victims of crime a series of rights:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.
(3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.
(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.
(5) The reasonable right to confer with the attorney for the Government in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the victim’s dignity and privacy.
The two Plaintiffs, both alleged victims of Epstein, claim that the non-prosecution agreement was in violation of the CVRA. Specifically, they say that the federal authorities did not confer with them about the plea deal, and intentionally kept the negotiations and the agreement secret. They submit that the agreement violated ‘their rights to confer, to be treated with fairness, and to accurate and timely notice of court proceedings‘ (subsections (2), (5) and (8)). They seek an order setting aside the non-prosecution agreement and reopening the decision, to allow them to participate in accordance with the CVRA.
The US Government claims (in short) that the CVRA didn’t apply; that the legislation didn’t allow the Court to rescind the non-prosecution agreement; and in any event that they complied with its requirements. The first two arguments were rejected in decisions in 2011 and 2013. The remaining defences are to be determined at a later date pending development of the evidentiary record.
In brief, the case is about whether the non-prosecution agreement that the US Government reached with Epstein violated victim rights, and should therefore be set aside.
Why was Prince Andrew Named?
In December last year two more alleged victims filed a motion to join the action as Plaintiffs. The application of “Jane Doe #3”, included substantial amount of information about her alleged abuse. Her lawyers submitted that this was background information relevant to the Court’s assessment of whether to allow them to join the action.
Jane Doe #3 set out a number of allegations against high-profile individuals, claiming that the Government’s alleged concealment of the non-prosecuation agreement was ‘to avoid Jane Doe #3 from raising powerful objections to the NPA that would have shed tremendous public light on Epstein and other powerful individuals and that would likely have been prevented it from being concluded in the secretive manner in which it was.‘ She also claimed that Alan Dershowitz, who helped to negotiate the non-prosecution agreement, did so to protect himself from prosecution as a co-conspirator.
The thrust of the allegation is that Epstein used his connections to get a favourable plea deal, and the Government kept the alleged victims in the dark to avoid negative publicity involving a number of high profile individuals.
The two additional parties claimed that their involvement would assist in responding to defences raised by the Government, and to outstanding discovery disputes.
It should be made clear at this juncture that the individuals named in this Motion deny the allegations. Alan Dershowitz in is pursuing the parties for defamation and perjury. He was also never identified by the US Government as being a potential co-conspirator.
What did the Court Decide?
District Judge Marra’s Order denies the application to join the parties, and that portions of their motion be stricken from the record, primarily those setting out the allegations of abuse.
He ruled that the motion ‘consists of relatively little argumentation regarding why the Court should permit them to join in this action‘. The ‘lurid details‘ contained in the motion were ‘immaterial and impertinent to this central claim (i.e. that they were known victims of Mr Epstein and the Government owed them CVRA duties), especially considering that these details involve non-parties who are not related to the respondent Government.‘
The crux was that this is not a case against Epstein, or the other named individuals. It is a case against the US Government, arguing that they failed to comply with their CVRA obligations in reaching the non-prosecution agreement. These additional details were not relevant to the merits of that case.
The Judge further ruled that the two parties would not be allowed to join the action. He concluded that their addition as parties was ‘entirely unnecessary‘. They would still able to get evidence, but the addition of them as parties would not materially advance matters. Especially as Judge Marra found that their own submissions, with their repeated reference to the similarity of the new and existing Plaintiffs’ cases, did not add anything material. Particularly as the original claim was not simply about the rights of the named Plaintiffs, but also ‘the rights of other similarly-situated victims‘.
This does not mean that they cannot give evidence, or that they are not able to raise the allegations that have been stricken from the record. The Plaintiffs intended to call Jane Doe #3 as a witness in any event. Judge Marra said that they were entitled to do so, but repeatedly reminded them about the need ‘to offer relevant, admissible and non-cumulative testimony‘ (emphasis in original). He further cautioned that the matters stricken from the record could be reasserted in evidence, but only if they ‘demonstrate a good faith basis for believing that such details are pertinent to a matter presented for the Court’s consideration.‘
Broadly, what the named individuals were alleged to have done to the proposed Plaintiffs added nothing relevant to a case about whether the US Government complied with obligations of notification and consultation.
What Happens Next?
The case will continue, brought by the two original Plaintiffs and potentially relying on the evidence of Jane Doe #3 as a witness. Should they succeed, the Court may overturn the non-prosecution agreement and the US Attorney’s Office would have to revisit its prosecution decision, doing so in a manner that gives effect to the CVRA.
That does not mean that the result would necessarily be any different. The provisions of the CVRA are about giving victims ‘a voice, not a veto.‘ The legislation specifically ‘reserves absolute prosecutorial discretion to the government‘ at 18 USC §3771(d)(6). But looking at the case advanced by Jane Doe #3 in her application, it may be that the Plaintiffs’ lawyers hope that the publicity this case generates puts pressure on the Federal Government to reach a different decision.