The Crime Victims Rights Act, 18 U.S.C. § 3771, is a routinely violated law. It confers rights on victims in federal criminal cases and in federal habeas corpus cases challenging state convictions, but victims rarely have their own attorneys in these matters, so there is generally no one to speak up for the victims in cases where the prosecutor chooses not to.
A particularly egregious violation occurred in the case of Florida's billionaire serial sex offender Jeffrey Epstein. The U.S. Attorney reached an agreement not to prosecute Epstein and leave him to state prosecution. That might not be so bad in itself, as the crimes are primarily of the type that should be prosecuted in state court. The "dual sovereignty" doctrine permits prosecution by both sovereigns for the same act, but it should be used sparingly. In this case, though, the feds let him off merely for reaching a state plea deal with a shockingly low sentence. Jacob Gershman reports for the WSJ.
Under the nonprosecution agreement with Mr. Epstein, who had been the target of a Federal Bureau of Investigation probe, federal prosecutors promised not to bring charges against him in Florida if, among other conditions, he pleaded guilty to two state prostitution-related felonies and served a 13-month prison sentence with work-release privileges that let him spend much of his time outside prison.
During the time this agreement was being negotiated, the federal prosecutors kept the victims completely in the dark. They even sent them letters saying that the case was still being investigated and asked them to be patient even after they had inked a deal disposing of the case. See also this story at Bloomberg Law.
What can victims do about it?
In 2008, victims filed suit in federal district court in Miami. Under CVRA, the normal mode of proceeding is to file a motion in the criminal case and, if denied, seek writ relief in the court of appeals. However, CVRA also provides that victims may go to the district court for the district where the crime was committed "if no prosecution is underway," a clear indication that Congress intended to provide relief for victims in cases where no criminal case is ever commenced.
That clarity did not stop DOJ from arguing that CVRA did not apply anyway, and they eventually lost that battle. Last week's ruling was on the victims' motion for partial summary judgment that a violation occurred. The 33-page decision is available at Bloomberg, and it makes for appalling reading.
Paul Cassell is one of the attorneys for the victims. He has posts at the Volokh Conspiracy here and here that provide further information. Paul says that nullifying the nonprosecution agreement is a possible remedy. CVRA unambiguously rules out money damages. See 18 U.S.C. §3771(d)(6).
The political angle to the case is that the former U.S. Attorney at the center of this debacle is now the Secretary of Labor, Alexander Acosta. He certainly has some serious answering to do. This scandal could cost him his cabinet seat. If it does, it would be a strong message to all U.S. Attorneys with ambition for higher office (i.e., most U.S. Attorneys) that they had damn well better take victims' rights seriously.
On the other side of the aisle, though, it should also be noted that DOJ has been fighting the victims for eleven years now, and eight of those years were during the Obama Administration. Former Attorneys General Holder and Lynch also have some answering to do, as does former AG Sessions for the last two years.
Do California victims have any rights related to retroactively lessening the punishment for the murder of a loved one?
~~~
~ https://www.cbsnews.com/news/daniel-marsh-double-murder-could-new-california-law-free-a-teen-killer-convicted-as-an-adult/
~~~
Marsh's lawyers have vowed to do what they can to have Daniel retroactively included under that new law.
D.A. Jeff Reisig: "We're going to fight that every step of the way, but … we might lose, and if we do Daniel Marsh will come back to our county, and he will be sentenced as a juvenile where he would eligible for release at 25. [the
maximum sentence runs only to age 25]."
If that happens, the state will have to argue every two years to keep Marsh behind bars, which means a still grieving family may never fully heal.
Sarah Rice: "We just went through this entire year having to rehash everything. It was literally like being in the trial all over again and even more so because I had
to hear him."
Victoria Hurd: "Right. … It retraumatizes me every time."
[Hurd & Rice are a victim's daughter and stepdaughter respectively.]
Six years ago, [Daniel Marsh] savagely stabbed to death Chip Northup, 87, and Claudia Maupin, 76, as they slept inside their Davis, California, home … "It was the most horrific, depraved murder I've ever seen as the district attorney in this county," Yolo County, California, D.A Jeff Reisig.
However, two months after the April 14, 2013 murders, police got an unexpected tip from a teenager saying his best friend, then 15-year-old Daniel Marsh, had bragged about the murders.. Garibay [the friend] says he finally came forward because
Daniel had threatened to kill again.
: Murderer Marsh:: “Every time I look at someone, in my mind I see flashes of images of me killing them.”
: Marsh:: “I cut open both of their torsos, you around here [points to two areas of his chest], and in the woman I put a phone inside of her and I put a cup inside the guy.”
: Marsh:: “I'm not gonna lie. It felt amazing.”
In fact, records show that Daniel was doing so much better in school, he was named Student of the Month after the high of the murders.
: Marsh:: “It was pure happiness, and adrenaline and dopamine, just all of it,
rushing over me.”
Prosecutors charged him as an adult. Experts diagnosed Daniel as a psychopath, who killed the couple for pleasure. He was tried as an adult, convicted and sentenced to 52 years to life.
_________________________
What seemed to be a closed case was far from it. … In September 2018, California Governor Jerry Brown signed a new law – known as S.B. 1391, which makes it impossible to ever try a 15-year-old offender as an adult – even one like Daniel Marsh.
In reading the court's order, which is well worth the time, I found myself in awe at the apparent complete abdication of prosecutorial duty. It made me wonder if these were career prosecutors or prosecutors who will find themselves after a few years knocking on the doors of the very same firms that the defense counsel work for looking for their next (but high paying) job. Revolving door prosecutors create some very negative incentives.
The AUSAs involved, and the political leadership, seemed to prioritize finding a way to resolve the case to defense counsels' liking over holding the guilty accountable. Whatever their motives were regarding securing admissions from Mr. Epstein that were of use in civil litigation, that it quite obviously not their job. Criminal prosecution is to catch, deter and punish the criminal. It is axiomatic to say so, but apparently not understood everywhere.
Plead what you can prove and prove what you have pled are wise commands for nearly every criminal case and certainly appropriate for child rapist of multiple victims. I find the more you try to "justify" a resolution, the more questionable the resolution tends to be on the spectrum of reasonableness.
I am really interested to hear what the AUSAs justifications were for hiding their NPA from the victims. Even if it were not a violation of CVRA, how exactly is it that they could justify misleading (aka lying) to them?
When a defendant lies to the police, I often argue that is because the truth is bad, i.e., he has something to hide. This concept applies to DoJ's behavior here. That I can analogize the prosecutors' behavior to that of a criminal defendant speaks volumes regarding how bad their behavior seems to be. I want to keep an open mind, but I am having a hard time finding any conceivable legitimate justification.
Regardless of the outcome of the case against Mr. Epstein, the Department of Justice should open an inquiry into the conduct of the prosecutors in this case. The report should be assembled quickly, public and required reading for members of the Department. Even if the NPA were justified, which is a hard sell given the number of victims, the concealment of their deal was not.
Adamkakis,
Yes, CA victims do have a right related to retroactive reductions of punishment, however I have never seen the argument presented in a Court of Appeal. As the AG represents the People in our appellate courts with respecting to defending criminal judgments, one would have to ask them why they have not to date, and I suspect will not, make the argument.
Ca. Const., art. I, sec. 28(a)(6) says, "Victims of crime are entitled to finality in their criminal cases. Lengthy appeals and other post-judgment proceedings that challenge criminal convictions, frequent and difficult parole hearings that threaten to release criminal offenders, and the ongoing threat that the sentences of criminal wrongdoers will be reduced, prolong the suffering of crime victims for many years after the crimes themselves have been perpetrated. This prolonged suffering of crime victims and their families must come to an end." See California's Truth-in-Sentencing provision at art. I, sec. 28(f)(5).
The defense would argue, and they might win the argument in our courts, that legislative retroactive reductions in punishment do not violate this substantive right of victims to finality and to the sentence imposed by the courts. I would like to see the argument tested.
Thank you, David.
Ca. Const., art. I, sec. 28(a)(6)
seems a very thoughtful constitutional
provision.
Would that the AG could consider finality,
for the sake of the victims.
All of the lawyers involved need to be disbarred. They are an embarrassment to the legal profession.
Little you know. The profession is incapable of embarrassment.
Decencyevolves: In this case, the respective identities of the perpetrator, multi-millionaire, hedge fund manager Jeffrey Epstein; his friends, who include a former President (Clinton) and a current one (Trump); the political ties of his counsel, Ken Starr and Alan Dershowitz; and the relative powerlessness of the victime seem to have alot to do with the outcome.
Amanda Marcotte has a point when she says:
"It's unbelievable but apparently true: America's intensifying wealth inequality has created a class of hyper-rich men who act like cartoon villains. Bored of their soft and pampered lives, they literally turn to torturing women for fun." https://www.salon.com/2019/02/25/are-we-breeding-depraved-billionaires-economic-inequality-sex-trafficking-and-trumps-america/