Basically, the feds agreed not to bring charges against Epstein provided he agreed to (a) plead guilty to state charges and serve 18 months (2) pay for lawyers (to be chosen by an independent third party) to represent more than 30 alleged victims in seeking money from Epstein (3) pay at least the statutory amount ($150k) for damages to each victim and (3) register as a sex offender.

Because Epstein is wealthy, he was able to retain exceptional counsel, including, Ken Starr, Alan Dershowitz, Roy Black, Marty Weinberg, Gerry Lefcourt and others. They did what great lawyers do -- negotiated a favorable resolution for their client, based on the facts of the case and settled and unsettled views of the law.

Why are Dershowitz and Prince Andrew coming up now? In my view, it's because the victims rights lawyers who represent the Jane Does are grasping at straws in an attempt to vitiate the non-prosecution agreement.

The lawyers for the Jane Does can't argue that their clients had any right to prevent DOJ from entering any agreement it wanted to with Epstein. The Act is clear it provides only a right to be heard, and victims have no right to prevent the Government from engaging in any deal it wants.

"Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." 18 U.S.C. § 3771(d)(6).

Nor does the Act allow victims to seek damages for failure to comply:

"Nothing in this chapter shall be construed to authorize a cause of action for damages or to create, to enlarge, or to imply any duty or obligation to any victim or other person for the breach of which the United States or any of its officers or employees could be held liable in damages." 18 U.S.C. § 3771(d)(6)

Put another way, the decision whether to seek federal criminal charges belongs solely to the Attorney General and the Department of Justice. Neither Jane Doe 1, 2, 3 or 4, nor the Court, can force prosecutors to indict someone or stop them from agreeing not to prosecute someone.

So the Jane Doe lawyers have come up with a convoluted fraud argument, based on their theory that DOJ breached its duty under the act to treat them "fairly and with dignity" by failing to give them advance notice of the non-prosecution deal with Epstein.

Epstein did his time and paid out as required. The deal was not only made, it was fully performed. These women have already accepted monetary settlements from Epstein. As Epstein lawyers Black and Weinberg described their theory in one pleading:

[T]he central premise of the Plaintiffs’ rescission theory – [is]that Epstein should be denied the due process protections normally attendant to plea bargains because the “billionaire” improperly, unethically or illegally used his financial resources and purported “political” influence to corruptly entice AUSA[s]...and high level officials at the Department of Justice (including even the Deputy Attorney General) into defrauding the Plaintiffs of their CVRA rights.

Why didn't DOJ notify of them of the agreement? Because after months of considering the issue, it became convinced by its own counsel and Epstein's counsel that the rights conferred by the Victims' Rights Act only apply to actual criminal proceedings, not to investigations that precede the filing of charges or when no charges are brought. Several courts have agreed with this position. (See list at the bottom.) Other courts, including the Jane Doe court, disagree. Here's a DOJ legal memo in 2010 in which DOJ still took this position.

The Jane Doe lawyers think it's some kind of conspiracy for DOJ to consider legal arguments by defense counsel. That's absurd. That's what prosecutors and defense counsel do. As Epstein lawyers Black and Weinberg write:

It is thus ludicrous for the Plaintiffs to continue asserting – without a shred of evidence – that the position taken by the government in the instant case was “caused” by some improper, unethical or illegal use of Epstein’s wealth and alleged political influence.

For such a “conspiracy” theory to fly, the Plaintiffs would have to prove that Epstein not only conspired with or corruptly influenced AUSA Villafana but also the U.S. Attorney himself, numerous officials at the Department of Justice, including the Deputy Attorney General, and prosecutors in many other far-flung jurisdictions.

Black and Weinberg write in the same pleading that the non-prosecution agreement with the feds was no sweetheart deal.

The NPA thus obligated Epstein to: (1) plead guilty in state court to a charge the State would not have initiated absent the NPA, to be sentenced to 18 months in county jail, to be followed by 12 months of community control; (2) plead to an offense that required lifetime sex offender registration; (3) agree to fund an attorney representative whose function was to sue him; (4) waive his rights to contest both liability (i.e. guilt) and subject-matter jurisdiction with respect to an undisclosed list of “victims” which he could not challenge and to pay each of them a lump sum monetary settlement; and (5) still face numerous additional civil cases brought under statutes other than 18 U.S.C. § 2255.

The NPA agreement was not made by a lone prosecutor who fell under the spell of defense counsel. It was reviewed and endorsed by the U.S. Attorney and multiple levels of high-ranking officials at the Department of Justice.

As I've opined a hundred times, if rich people receive better legal representation than poor people, the solution is not to deprive rich people of their ability to retain high-quality representation, but to make such representation available to all, including the indigent.

Another (in my personal view) hair-brained argument of the Jane Does: They complain the non-prosecution agreement provided Epstein's "conspirators" wouldn't be charged. They claim Dershowitz was a co-conspirator who was acting in his own interest while representing Epstein so he could avoid his own prosecution. They also claim collusion by other members of the defense team:

Dershowitz would later play a significant role in negotiating the NPA on Epstein’s behalf. Indeed, Dershowitz helped negotiate an agreement that provided immunity from federal prosecution in the Southern District of Florida not only to Epstein, but also to “any potential co-conspirators of Epstein.” NPA at 5. Thus, Dershowitz helped negotiate an agreement with a provision that provided protection for himself against criminal prosecution in Florida for sexually abusing Jane Doe #3.

Because this broad immunity would have been controversial if disclosed, Dershowitz (along with other members of Epstein’s defense team) and the Government tried to keep the immunity provision secret from all of Epstein’s victims and the general public, even though such secrecy violated the Crime Victims’ Rights Act.

I don't blame Dershowitz for being apopletic about this filing. (Buckingham Palace isn't happy either.) Naming Dershowitz and Prince Andrew in a case in which neither is a party and which they are irrelevant to seems designed for only one thing: media attention.

It should be noted that a former federal prosecutor alleged in a pleading filed in the case that the Jane Doe lawyers falsely smeared him in one of their filings. The former AUSA filed a motion to intervene saying the Jane Doe lawyers falsely claimed that after he left the U.S. attorney's office, he “joined Epstein’s payroll shortly after important decisions were made limiting Epstein’s criminal liability” and improperly represented Epstein victims in follow-on civil suits. The judge ruled he couldn't intervene because his claim did not share a common question of law or fact with the Jane Doe action.

[W]hether [the AUSA] used his position at the U.S. Attorney’s Office to ingratiate himself with Epstein and advance his career in private practice — involves no common questions with the Plaintiffs’ claims that the U.S. Attorney’s Office violated their CVRA rights through the process in which it entered into the NPA with Epstein.

And even if they did involve similar questions, the Court ruled, it would still deny the request for sanctions and to intervene:

The Court cannot permit anyone slighted by allegations in court pleadings to intervene and conduct mini-trials to vindicate their reputation. Absent some other concrete interest in these proceedings, the Court does not believe that the allegations here are sufficiently harmful to justify permissive intervention.

[The AUSA] has publicly aired his opposition to and denial of Plaintiffs’ contentions, both on this docket and in open court, and the Court finds that further proceedings on this issue are unwarranted. For the same reason, the Court declines to conduct a sua sponte Rule 11 inquiry.

No wonder the Jane Doe lawyers feel so empowered. It's like Rule 11 doesn't exist in the Southern District of Florida.

Check out this woman's story which closely matches Jane Doe 3, who was identified in 2011 by the Daily Mail.

Using the lawyer provided to her under the agreement (at no cost to her), Jane Doe 3 sued Epstein in 2009. The suit was settled in 2010 and the case dismissed. Here's an article on the settlement saying the amount of her settlement wasn't disclosed but other cases were settled for $150,000 each.

Another article says that the lawyer hired to represent the women, Robert Josefsburg, in turn used the services of his daughter, a state's attorney in Florida, and billed Epstein $700,000 for her services while she was drawing her state's attorneys pay. Josefsberg's firm's fees were $2.5 million in 2010 when he sued Epstein to recover the outstanding amount of $2 million. His firm's complaint alleged:

For the extensive legal work done on behalf of these young women through settlement by Mr. Josefsberg and his team, the Podhurst firm is currently owed a total of more than Two Million Dollars ($2,000,000) in fees and costs, with additional fees and costs being incurred and billed to Defendant in the future.

According to pleadings filed in the lawsuit over the fees, available on PACER, Epstein had already paid $526,000 to Josefsberg's firm. The case was eventually settled.

Epstein was only obligated to pay legal fees if no settlement was achieved under the statute, which provides for at least $150,000 in damages:

Any person who, while a minor, was a victim of a violation of section ... 2422 or 2423 of this title and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit, including a reasonable attorney's fee. Any person as described in the preceding sentence shall be deemed to have sustained damages of no less than $150,000 in value.'

There were 34 named victims, and all who used Josefsberg's firm settled.

*******
Other cases cited by Black and Weinberg where courts have decided victim notification rights only attach after criminal charges are brought: United States v. BP Products, N.A., No. 4:07-cr-434 (S.D. Tex.) and

United States v. Merkosky, No. 1:02-cr-0168–01 (S.D. Ohio April 11, 2008), 2008 WL 1744762, at *2 (denying relief under 18 U.S.C. § 3771 and 42 U.S.C. § 10607, finding that “the Crime Victims Restitution Act does not confer any rights up a victim until a prosecution is already begun”); United States v. Turner, 367 F. Supp. 2d 319, 326 (E.D.N.Y. 2005) (explaining why, despite a contrary statement in the legislative history, the actual language of the CVRA appeared to exclude victims of uncharged conduct from those covered by the CVRA); Searcy v. NFN Paletz, 2007 U.S. Dist. LEXIS 46682 (D. S.C. June 27, 2007) (noting cases that interpret the definition of “victim” to require the existence of a charging instrument). Accord Harrison v. Hamilton Co., No. 1:12-cv-106 (S.D. Ohio March 13, 2012), 2012 U.S. Dist. LEXIS 33150, at *5 n. 2.