Judge Berman’s Therapy Show

In the olden days, when there was a dispute that couldn’t be resolved between people, the ultimate response might be, “See you in court.” It wasn’t because everybody liked to hang out in courtrooms, but because they were built to serve a purpose, a place where judges and litigants and, on occasion, juries would do law stuff.

Maybe Judge Richard Berman didn’t get the memo?

“The fact I will never have a chance to face my predator in court eats away at my soul,” said Jennifer Araoz, who has accused Mr. Epstein of raping her when she was a 15-year-old student at a performing arts high school in New York. “They let this man kill himself and kill the chance of justice for so many others in the process, taking away our ability to speak.”

As heartfelt as this may be, and this has nothing to do with the pain she felt, Araoz and others were given the opportunity to speak at a hearing on the dismissal of the indictment against Jeffrey Epstein. Epstein is dead, and the indictment must be abated by reason of death.

Ms. Wild and Ms. Araoz were among the nearly two dozen accusers who shared their accounts with Judge Richard M. Berman at a hearing called after federal prosecutors said they planned to drop the sex trafficking charges against Mr. Epstein in light of his death — a decision that requires a judge’s approval.

Though throwing out an indictment after a defendant dies is usually a routine matter, Judge Berman, who called the suicide “a rather stunning turn of events,” said one reason he convened the hearing was to give the women their day in court.

This description is disingenuous. It’s not a judicial act, but a ministerial act, even though a judge is required to sign off on the dismissal. There is no option. There is no discretion involved. The defendant is dead. That’s the end of the case. And since he died before being convicted, he remains unconvicted of the charges. That’s the law. You don’t have to like it.

That the putative “victims,” who are not yet victims despite whatever anyone might believe because Epstein was not yet convicted in this case, feel about the proceedings is a matter of obvious concern and empathy for the women involved, their families and the public. What it is not is a concern for is the law.

There’s an argument to be made, particularly in this case where a court had previously held that the victims were denied their right under the Crime Victims Rights Act to be informed as to the status of the prosecution in Florida, that they have a right to be heard at this hearing. But the CVRA includes no such requirement.

(a) 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.

There is no generic right to be heard at a hearing, and no specific right to be heard at a dismissal hearing for abatement upon reason of death. That doesn’t mean that Judge Berman doesn’t possess the inherent authority to allow victims to speak.

“Mr. Epstein’s death obviously means that a trial in which he is a defendant cannot take place,” Judge Berman said. “I believe it is the court’s responsibility, and manifestly within its purview, to ensure that the victims in this case are treated fairly and with dignity.”

Those are certainly kind words toward the victims, and few people would argue that victims should be treated unfairly or without dignity, but then, is the judge saying that another judge who doesn’t allow victims to have their “day in court,” something to which they are not entitled in a criminal proceeding between the government and the defendant, is being unfair and undignified?

At the judge’s invitation, the rows of women in the gallery on Tuesday stood and formed a line leading into the well of the packed courtroom, some clasping each other’s hands and whispering words of encouragement.

For more than an hour, they took turns describing their trauma and voicing their anger that Mr. Epstein had avoided accountability for decades. Some women spoke anonymously; some through lawyers. Sixteen of them spoke in person, many with shaky voices, trembling hands and tears.

If this seems familiar, it harkens back to the show put on in a Michigan courtroom before the sentencing of Larry Nasser. when Judge Rosemarie Aquilina allowed the victims in the case, along with hundreds of other women who had no involvement in the case, to tell their stories before a national audience. It was adored by many, and Judge Aquilina became a folk hero for allowing this show to play out in her courtroom.

Was Judge Berman going for the same thing when he invited this group therapy session into his courtroom? It’s likely that the decision to permit the “victims” to be heard was more utilitarian for Judge Berman than for Judge Aquilina. Maintaining faith in the judiciary is, itself, an important justification, and allowing his courtroom to serve as a center of catharsis for angry and hurt women who may, but may not, still get an opportunity to testify against a defendant, to express the harm done them and to be heard.

But they will never get to stare at the primary focus of their outrage, Jeffrey Epstein. He’s dead and his case must be dismissed. So it was left to Judge Berman to provide them with the one chance they would have to stand in a courtroom and speak to their suffering. This was not, of course, why courtrooms were built, and this is contrary to their function of doing the dirty work of law, but it was a nice gesture and a decent act of public relations.

It was also unseemly to push the public’s perception of why law exists, why courtrooms are built, when it’s used as a stage to put on a passion play for public consumption. The integrity of the judiciary as an institution is important, but when the perception that “decent” judges have a duty to put their courtrooms to use as stages for cathartic displays, its palliative benefits come at the expense of the one and only reason courtrooms were built: to do law.

28 thoughts on “Judge Berman’s Therapy Show

  1. Bryan Burroughs

    Not to mention, by calling them victims, the judge has already announced a verdict in a trial that never happened. Makes me question his impartiality.

    I imagine it happens all the time, but it’s still a bad look

    1. SHG Post author

      While that’s true, in this case there can be no determination since there will be no trial. If this was nothing more than a dog and pony show for the benefit of the public perception, then it makes sense to indulge the victims.

      1. Guitardave

        I was thinking two, five minute spots for a musical interlude during the proceedings, one near the start and one near the end…some overly passionate strummer with a sad tale of bad men…something to bring the mood of the room together…make the variety show complete.

  2. Richard Kopf

    SHG,

    Fun Facts:

    According to the Federal Judicial Center’s bio, Judge Berman holds a M.S.W., 1996, from Fordham. I think that degree means he holds a master’s degree in social work. Fordham touts its program this way, “By earning a Fordham MSW, you’ll join an academic community that’s as passionate about social justice as you are.”

    All the best.

    RGK

    1. SHG Post author

      I was aware of Judge Berman’s MSW, but felt it would be improper to use an ad hominem to question his decision.

      1. Richard Kopf

        SHG,

        I did not intend my comment as an ad hominem. If my comment is fairly construed as such, and I take your judgment over mine on that question, I sincerely apologize.

        What I did intend was to point out that federal judges are just like anyone else. That is, they are products of their backgrounds and that can lead each of us astray. It seemed fair to point out the judge’s educational background when commenting on your post entitled “Judge Berman’s Therapy Show.” That is, given his background, he might be unusually attuned to the needs and desires of the putative victims and thus, wrongly in my view, used his position to do something other than law. The MSW degree seemed to me to provide insight into why the judge held what you called a therapy session.

        All the best.

        RGK

        1. SHG Post author

          We all bring our life experiences to whatever we do, but if you take a judge’s paycheck, then it would seem that you put the social worker piece to the side and do the judge job. Being attuned to the emotional needs of victims, but when that gets in the way of maintaining judicial focus, he has to make a choice.

          I was only kidding about the ad hominem, although the MSW was the reason for the title.

    1. wilbur

      I remember watching her on Ed Sullivan when I was a youngin’, and silently wondering how or why anyone thought this woman could sing at all.

      1. Howl

        I had the same wonder about Bob Dylan. There’s a reason why we ain’t talent scouts for the music business.

        1. B. McLeod

          Special talent there, mostly as a writer. I always felt really good about being able to sing any Dylan song better than Dylan could.

          1. wilbur

            Much like Ms. Merman or Mr. Dylan, ET connected with his audience despite singing a lot of flat notes.

          2. Howl

            Seems that everybody who covers a Dylan tune does it better. But he does get credit for doing it first.

  3. B. McLeod

    At the VERY LEAST he could have had Epstein’s casket wheeled in and let them beat on it with sticks for an hour. Or perhaps ordered some “hanging Epstein” pinatas, so they could feel like they got their licks in before it was too late?

    It wouldn’t have been much worse or much more pointless than what he did decide to do, and they might have left feeling better (or at least with a few candies for their trouble).

    1. wilbur

      True, true.

      Either way, I think the judge just wanted to let them get it out of their individual and collective systems. Whether that was accomplished, I won’t pretend to know.

  4. Appellate Squawk

    Perfectly proper when the point is that he wasn’t acting like a judge but like a social worker in a robe. “Treating your adversary with respect is giving him an advantage to which he is not entitled.” — Dr. Johnson.

  5. Afton

    [Quote] “That the putative “victims,” who are not yet victims despite whatever anyone might believe because Epstein was not yet convicted in this case, feel about the proceedings is a matter of obvious concern and empathy for the women involved, their families and the public. What it is not is a concern for is the law.” [Unquote]

    Whether or not someone is a victim is a matter of fact, not a matter of law. If Epstein did indeed assault his accusers, then the accusers are victims. If he didn’t, then they’re not. Whether or not Epstein was convicted has nothing to do with whether or not his accusers are victims. People don’t “become” victims only after their assaulters are convicted.

    1. SHG Post author

      If there is no crime, there can be no victim. There is no crime until the jury says there is. The jury finds facts, and if they find, as a matter of fact, that they’re victims, then they’re victims.

      This doesn’t prevent you, for example, from believing they’re victims, but don’t confuse your feelings with legal status.

      1. Afton

        There is a three-way distinction between: (1) whether or not someone is in fact a victim; (2) whether or not I believe someone is a victim; and (3) whether or not a jury determines that someone is a victim. You seem to be conflating (1) and (3).

        Someone can in fact be a victim without a jury finding them to be so. And a jury can find someone to be a victim who, as a matter of fact, is not. Juries are fallible. There will always be an epistemic gap between what actually happened, and what we can know about what happened. And hence the three-way distinction.

        1. Skink

          The determination of #1 is by #3. It is the result of the best manner of determining the truth ever invented by man: the questioning of the claim by those knowledgeable in questioning. This here Hotel is occupied by those deft in that art: judges and lawyers. If you are either, consider an occupational change.

          A victim is not a victim without proof. They do not exist in the air. They do not exist because they say so. They do not exist because you say so. They only exist on proof, which is subject to testing. That testing is a skill you do not have.

      2. Jim Majkowski

        `When I use a word,’ Humpty Dumpty said, in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.’
        `The question is,’ said Alice, `whether you can make words mean so many different things.’
        `The question is,’ said Humpty Dumpty, `which is to be master — that’s all.’

  6. Pingback: Putting the brakes on “victims’ rights” | Appellate Squawk

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