Tuesday Talk*: Should The Victims Speak?

At the bond hearing before SDNY District Judge Richard Berman, something almost unheard of occurred. Putative victims of Jeffrey Epstein rose at the hearing and addressed the court.

The women stood just feet from where Epstein was seated in his blue jail outfit as they asked a federal judge to reject a request by Epstein’s lawyers that he remain under house arrest in his $77 million Manhattan mansion until trial on conspiracy and sex trafficking charges.

Until trial? That’s the problem. They’re not characterized as “putative victims” as a pejorative, but because Epstein has yet to be tried and convicted in this case. That whole presumption of innocence problem keeps rearing its nasty head, since we know as a matter of law that it applies, even if we really feel like we don’t want it to. At least this time.

In its papers, the government argued that the “victims” had concerns worthy of consideration by the court.

Does the CVRA entitle these “victims” to be heard?

(a) Rights of Crime Victims.—A crime victim has the following rights:

(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.

Theoretically, yes, as this is a public proceeding involving release. But it begs the question: are they victims?

The term “crime victim” means a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia.

In some instances, there is no question but that a crime has been committed and the victims easily identified. A murder, for example, may be undeniable, and the survivors are undeniably victims. This, of course, fails to answer the question of whether the person charged committed the crime, but at least there is no doubt that the crime itself occurred.

But in other cases, such as this case, the existence of the crime charged hasn’t been established, and there can be no victim of a crime until there is a crime.

The government requested that the victims be heard at the hearing, and the judge allowed it. No ruling was made that they were victims, or that the CVRA compelled the court to hear their pleas, but the judge has the authority to allow whatever he wants to allow, subject to the prejudice to the defendant.

The arguments by the government, on paper, were curious, that the victims were fearful of the defendant. Based upon the allegations against the defendant, 14 years have elapsed since there was any contact between them, during which time the defendant was free and no harm was done to them. There was no claim that the defendant might commit the same crime against these victims if he was released, so that couldn’t be the justification.

Rather, the concern was that the defendant might try to “take them out” to silence them now. Were these credible concerns, particularly given the notoriety of this prosecution?

In any event, the judge allowed them to speak, and speak they did.

Courtney Wild, an unnamed victim in the 2008 lawsuit against the Department of Justice for the secret plea deal that allowed Epstein to avoid similar charges, spoke for the first time in court with a fellow accuser.

Wild said she was sexually abused by Epstein in Palm Beach, Florida, when she was 14.

“He’s a scary person to have walking the streets,” she said.

Annie Farmer said she was 16 when she met Epstein in New York. She said he later flew her to New Mexico to spend time with him there.

“He was inappropriate with me,” she said. She did not elaborate.

After court, lawyers for the victims held the obligatory courthouse steps press conference “explaining” why their clients were there.

It appears the “victims” contributed nothing of substance, but were there as government props, for their emotional value, to contribute as much to bias the court and public against the defendant as possible. Putting sweet faces to a heinous, if still only alleged, crime, even if nothing more, can have a devastating visceral impact to those watching, and those deciding.

Was this proper? Is it different in this case because Epstein is presumed by so many to be guilty, despised and thus undeserving of the presumption? If so, what prevents the same props to be pulled out when it’s not someone so easily hated?

H/T Adam Kasfeld of Courthouse News

*Tuesday Talk rules apply.

22 thoughts on “Tuesday Talk*: Should The Victims Speak?

  1. B. McLeod

    A thinly disguised attempt to start punishing Epstein before the formalities of a trial. The “dangerousness” argument is pretty silly and reflects that the government lacks confidence in its ability to convince the court he is a flight risk. Yet, they can’t just let him walk free, because he is rich and evil.

    1. SHG Post author

      Never underestimate the govt’s desire to go belt and suspenders. The SDNY tends to stack the deck as much as possible.

  2. szr

    It doesn’t seem proper or smart to allow potential witnesses to make statements on the courthouse steps for several reasons.

    First, this spectacle creates an unnecessary risk to the prosecutor’s case because anything a witness said could be used by the defense to undermine her credibility. Second, it may strengthen any defense motion to change venue because of how public these prejudicial statements are. Third, as you note, this PR gambit is likely to be followed by litigants in other cases. Finally, this stunt erodes the principle of a defendant’s presumption of innocence by telling people that any result other than conviction is unjust.

    We already have public trials—we’re further eroding public understanding and support for the legal system by allowing a PR circus outside on the courthouse steps.

    1. Jay

      Agreed. In state court either side can introduce whatever they want at a bond hearing, the reason we don’t see a lot of complaining witnesses is because they’d be opening themselves up to cross. I guess the feds haven’t heard of due process? Adversary system?

      1. SHG Post author

        Jay, the thing with “state court” is that there are 50 (plus some) of them with significant variations between them. Most lawyers realize this because they don’t have shit for brains, and so they don’t confuse their state with all states, which prevents them from saying something in a comment that’s completely moronic and makes people stupider.

      2. OtherJay

        Are you okay with the same ‘adversary system’ dismantling these victims on cross by competent counsel, or would you prefer the courts to make some special consideration because the deft is the devil incarnate?

  3. Hunting Guy

    Laws are driven by what society wants, like the sex offenders register.

    If society wants to change the laws and hang someone before a trail, it will happen.

    You may disagree with the mob, but you will be swept along with the tide.

    1. SHG Post author

      Laws too often reflect the worst of our impulses. That’s why we are supposed to have an independent judiciary, courts which are putatively outside political concerns, as a check on our worst impulses.

      1. John Barleycorn

        Isn’t it about time you updated your “In the Well” accessory wardrobe?


        Before the Pre-sentence O’matic becomes a matter of law and in order to maintain an independent judiciary bench head-gear becomes a thing again…


        P.S. I bet Jeffrey wishes he had set up and seeded a few college investment accounts to go along with the three hundred dollar hand jobs. I mean really….wtf was he thinking? Heck, he could have even filed the yearly earnings synopsis reports next to the nudes.

      2. Jim Cline

        Why do I have the feeling that the only thing lacking in getting a law passed to change presumption of innocence to presumption of guilt and jail until proven innocent in sexual assault cases is a victim to name it after.

  4. Jake

    If it turns out both of the accusers who spoke at the bail hearing on Monday were victims in the botched case in Florida (one of them is confirmed to be in this awful cohort), does the testimony of a prior victim usefully speak to the history and character of the defendant?

  5. Pedantic Grammar Police

    Epstein got a pass, and now he will get a show trial leading to conviction. What changed? It wasn’t the facts of the case. What changed was the political climate, and the motivations of the factions that fight over who will rule us. This focus on the “victims” is just part of the show.

    What’s that whooshing sound? It’s the legitimacy of our legal system flying out the window.

  6. B. McLeod

    Well, the court bought it:

    “The government has established a danger to others and the community by clear and convincing evidence.”

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