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Judge to Jeffrey Epstein's Victims: Too Bad, So Sad

Vivia Chen

September 19, 2019

Marra_kenneth_a_jad-Article-201909181920-1Who knew federal judges could be such teases?

I’m talking about U.S. District Judge Kenneth Marra of the Southern District of Florida who just made a punch-in-the-gut ruling in the continuing Jeffrey Epstein saga.

In February, Marra ruled that federal prosecutors violated the Crime Victims’ Rights Act (CVRA) when they brokered the sweetheart plea deal with Epstein that basically let him treat prison as a sleep-away camp. (He was allowed to go to his office during the day.) Marra even harshly criticized former prosecutor Jim Acosta, contributing to Acosta’s ouster as Trump’s labor secretary. Hailed as a victory for the victims, the ruling was expected to set the grounds to invalidate the agreement and give Epstein’s victims their day in court.

Well, the judge giveth. And the judge taketh away.

In the latest ruling, Marra told Epstein’s victims they’re out of luck—on just about everything. That means, no access to FBI records or grand jury findings on the Epstein investigation, attorney fees or a court-ordered meeting with Acosta—among other requests.

But most striking was this: Marra refused to void the immunity granted to Epstein’s alleged co-conspirators under the plea deal. (The plea explicitly granted immunity to Sarah Kellen, Adriana Ross, Lesley Groff and Nadia Marcinkova, who are accused of procuring underage girls for Epstein.)

Marra’s rationale for this ruling: Epstein is dead, so the effort to invalidate his plea agreement died with him. OK. But what about the immunity granted to the alleged co-conspirators in the agreement? To justify that, the judge seems to perform legalistic jiujitsu. (Marra says that the request to invalidate the immunity “invites the court to render an advisory opinion,” which is not allowed under the Constitution. Moreover, he says that the co-conspirators weren’t party to the plea.)

I’ll give Marra this—he was right on the money when he wrote at the conclusion: “So, despite petitioners having demonstrated the government violated their rights under the CVRA, in the end they are not receiving much, if any, of the relief they sought.”

Let that sink in: The good judge acknowledges that the women were victimized by the system. But he’s siding with the system. Huh?

George Washington Law School professor Stephen Saltzburg says Marra’s decision was inevitable. “He didn’t have a choice because crime victims had a limited time to object and seek redress—and that time has long passed,” he said, adding that the CVRA “couldn’t be clearer” on that point.

Which raises this question: If the statute is so crystal clear, why did Marra bother to ask the parties to file voluminous submissions about relief? “I can’t figure out why,” Saltzburg says. “It’s a little odd.”

Odd, indeed. If I were one of the victims, I’d feel that the court stoked my hopes, only to crush them to smithereens.

“This decision mirrors so much of what the case was trying to fix—the exclusion and silencing of victims in criminal justice,” sums up Meg Garvin, the executive director of the National Crime Victim Law Institute (NCVLI).

I’m sure the victims’ lawyers are seething too, though they’re keeping it under wraps.

“After working so hard to hold the government accountable for the blatant violation of their rights, the order today did little to advance the Epstein victims’ cause,” says Boies Schiller Flexner partner Sigrid McCawley, who represents over a half-dozen of Epstein’s alleged victims. “I am confident that the dedicated lawyers who worked so hard on this matter for over 11 years will seek review by the Eleventh Circuit.”

That sure sounds like an appeal to this latest decision is in the offing.

And even though Marra would like his ruling to be the final word on Epstein’s spectacular plea deal (Marra wrote: “This order brings to an end this lengthy and contentious litigation”), that’s wishful thinking.

If anything, Marra probably opened up another can of worms.

vchen@alm.com

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The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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