What can be learned from Jeffrey Epstein’s lawyers – advocating against pretrial detention in federal cases.

Most law is derivative – lawyers regularly use the previous work of others to hone arguments and further their client’s interests. Early in my career, I would go to the Milwaukee County Clerk of Courts office and pull files from high profile cases to see how more experienced criminal defense lawyers wrote their motions. On occasion, I still review high profile case files from nationally important cases because I’m always looking to improve my advocacy on behalf of my clients.

Today there is no higher profile case than Jeffrey Epstein’s federal case in the Southern District of New York. And because of his extreme wealth, his legal team is crafting very good work product. Indeed, one of their initial pleadings on his behalf, a letter written to his assigned judge to argue against pretrial detention, is spectacular both in addressing the substance of the pretrial detention law and persuasiveness in applying Epstein’s own case facts to that law. 

First, the letter alerts the judge to the defendant’s willingness to abide by a stringent set of conditions to ensure he does not flee or pose a risk to the community prior to his trial. Epstein’s attorneys lead with this idea – and then return to the specifics of the conditions later in the document.

Next, the defense team strongly attacks the Government’s ability to even initiate a case against Epstein given his earlier Non-Prosecution Agreement which was a global settlement of all criminal liability in 2007. As widely-reported, whether this agreement nullifies the current charges against Epstein is likely his strongest defense. Epstein’s attorneys make a persuasive and detailed argument that the agreement precludes new charges. The defense also acknowledges the “bad facts” obviously present in the case – after all, Epstein did plea guilty in 2007, so these facts are somewhat inescapable. 

The defense then argues that the purpose of pretrial detention, as articulated by the 1984 Bail Reform Act, is not furthered in Epstein’s case. Citing the purpose of the law is the setup to then argue why the rebuttable presumption for detention under 18 USC 3142(e) should indeed be rebutted in Epstein’s case. 

Lastly, the defense lawyers run through conditions of release that would satisfy 18 USC 3142(c), notably a condition for GPS monitoring – which relates specifically to the case’s unique facts involving minor victims. 

Despite the very competent representation – where vast resources abound – Epstein’s judge denied his lawyers’ attempts to have him released pending trial finding that no amount of security or any set of conditions would suffice to ensure public safety or Epstein’s later appearance in court. Still their efforts are an example of excellent advocacy. 

You can read the entire Epstein letter here.