Professor Bruce Green co-authored an article with New York Law School Professor, Rebecca Roiphe, for New York Law Journal that discusses the unorthodox decision by Judge Richard Berman to order a hearing on the prosecutors’ decision to dismiss the indictment against now-deceased defendant, Jeffrey Epstein, and to allow his accusers to speak at that hearing.
This is an odd moment for transparency in a criminal case. Normally, if a prosecutor seeks to dismiss an indictment for such an obviously worthy reason, the court would simply grant the request. The judge would not schedule a hearing and he definitely would not allow the victims to speak. And if he did hold a hearing, whatever informational interests the victims may have would be served by affording them a chance to attend the hearing, not by giving them a speaking role.
The procedural rules governing federal criminal cases do not provide for posthumous trials. If the accused dies before trial, the federal court has no choice but to dismiss the indictment and end the case. Indeed, if an accused is tried and found guilty but dies while his appeal is pending, the federal court must set the conviction aside, as if it had never occurred. If a party to a civil lawsuit dies, his estate may step into his shoes. But in a criminal prosecution, the defendant’s estate cannot be asked to answer for the defendant’s alleged crimes.
And so it is odd for the judge in this case to delay the inevitable dismissal, seemingly for dramatic effect. He has no choice but to dismiss the charges. At the hearing he scheduled, Epstein’s lawyers will not oppose the prosecution’s motion to dismiss the indictment. It is doubtful whether Epstein’s former lawyers could oppose the prosecution’s motion even if they thought there were grounds to do so. Epstein’s defense lawyers no longer have authority to speak on his behalf: the lawyer-client relationship ended with his death. Nor would the victims have any plausible grounds to ask the judge to continue the proceedings.