Tuesday, July 09, 2019

The Epstein Indictment and Statutes of Limitations

by Michael C. Dorf

The indictment of Jeffrey Epstein for sex trafficking and conspiracy to commit sex trafficking of minor girls alleges acts "from at least in or about 2002 up to and including at least in or about 2005." That is hardly the most felicitous phrase, but it fairly conveys the sense that the crimes allegedly occurred from a period roughly 14 to 17 years ago. It is possible that yesterday's discovery of a "trove of lewd photographs of girls" in a safe inside Epstein's NYC home could lead to additional charges for more recent conduct--either for possession of child pornography or for other offenses for which the photos provide evidence or leads. Even so, however, readers may be wondering how Epstein can be charged now for offenses that allegedly occurred a decade and a half ago. What about the statute of limitations?

Although the default federal statute of limitations for non-capital crimes is five years, Congress has made numerous exceptions. In 2006, it eliminated the statute of limitations entirely for child kidnapping and child sex trafficking. Per constitutional case law construing the Ex Post Facto Clauses' limits in criminal cases, it could only do so for future alleged conduct and past alleged conduct for which the statute had not yet run when Congress eliminated it. By going back only to 2002, the indictment covers most of whatever Epstein allegedly did that was still within the old five-year limit when the 2006 Act was adopted.

What should we make of the elimination of this and other statutes of limitations or of the parallel trend in recent decades to extend limitations periods (both at the state and federal levels)? The case for extension or abolition is straightforward: Those who commit heinous crimes should not be able to avoid justice by out-waiting it. That impulse is understandably especially strong with respect to minor victims, who may not have the wherewithal to come forward with charges until many years later.

But the severity of the offense is a double-edged sword.

English, colonial, and American law traditionally excepted murder from the statute of limitations, as current law continues to do. Reasoning from that longstanding exception, advocates of extending or eliminating statutes of limitations for particular offenses have tended to point to the seriousness of the crime. Crime X (whether terrorism, rape, sex-trafficking a minor, or some other admittedly terrible act) is not murder, but it too is very serious and therefore should likewise have no statute of limitations, they argue.

Despite the success of this argument, we might question the logic. The more serious the offense, the more unjust that a perpetrator gets away with his crime, but also the more serious the offense, the greater the stakes for the accused. Put differently, the stakes go up for both the prosecution and the defense as the seriousness of the crime under consideration increases. Thus, if we think the five-year statute of limitations makes sense for mail theft, which carries a maximum penalty of five years in prison, it is not clear that a longer period or no statute of limitations at all is appropriate for a more serious offense. Again, the greater seriousness means that the defendant could get away with more, but it also means that a wrongly convicted defendant will suffer a greater injustice.

And of course, statutes of limitations exist to protect defendants. Over time, memories fade, witnesses become unavailable, and evidence grows stale. These are problems for the prosecution as well as the defense, but the statute of limitations protects only the defendant. After all, if the passage of time substantially weakens the prosecution's case, then a savvy prosecutor won't bring it, or if an unsavvy prosecutor does bring it, the jury will acquit. But if the prosecution's evidence has been preserved, the defendant may need the statute of limitations or else risk being unable to produce a defense that would have been available had the case been brought in a timely manner.

But what about murder itself? Doesn't my argument suggest that even murder should be subject to the more-or-less standard statute of limitations? Yes, it does. However, I'll conclude with four observations:

(1) The fact that Anglo-American law has long adhered to the principle that the most heinous crime should not be subject to a statute of limitations does not suffice to justify the principle. As O.W. Holmes, Jr., famously said: "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV."

(2) My (admittedly tentative) argument here is not for any particular statute of limitations. I'm not even arguing against wholesale abolition of statutes of limitations for all offenses. I am questioning the relation between seriousness of the offense and the urge to lengthen or abolish the statute of limitations. If there are good reasons for some statute of limitations L for the "ordinary" crime C, then the fact that some other crime S is more serious than C does not entail that S should not be subject to L as well.

(3) Apart from heinousness, there are reasons why one might nonetheless think that a statute of limitations should be waived in particular cases. For example, a state or the federal government could adopt a rule under which a showing by the government that the defendant's efforts to conceal his crime or the youth or other vulnerability of the victim at the time preluded the bringing of a timely indictment, would estop the defendant from invoking the statute of limitations.

(4) I am not taking any position at all on the strength of the evidence against Epstein or the ease or difficulty of mounting a defense at this date. I'm using the fact that the case is in the news simply as a point of departure to make a point about statutes of limitations in general.


Shag from Brookline said...

There is no statute of limitations in the court of public opinion. Prosecutors have great powers, not only to prosecute, but not to prosecute. Justice is not always delivered with a blindfold. The Jeffrey Epstein story reveals how prosecutors failedto deliver justice. Epstein happens to be wealthy and able to procure the services of expensive lawyers. Epstein may have had politicians protecting him.

Contrast this with the Innocence Project that helps to free convicted defendants who lacked wealth to obtain the services of a qualified attorney at trial.

I'm not suggesting a Guilty Project to jail wealthy, powerful persons who have gamed the justice system but rather the need to put the spotlight on inequality in the justice system.

The 1st A's speech and press clauses are called for to expose prosecutorial injustices. Let's see how this plays out for Epstein. His current prosecutors will have to address the applicable statute of limitations. I have no reason to believe that prosecutors charged Epstein knowing that the statute of limitations had run out.

We do need statutes of limitations. But we also need equality in the justice system. Reports on the Epstein charges included a reference to NY DA Vance who sought in court to lower the degree of Epstein as a sex offender. The public should know about Epstein's enablers.

This is a scary time for justice with Trump as president as we witness signs of corruption in his administration. Even the president should not be above the law.

The Miami Herald should be applauded for its efforts in the Epstein matter over the years. Public accountability is called for to approach fairness and justice for all. Perhaps a start might be for Trump to consider the role of his Secretary of Labor in the Epstein saga. And the legal profession might look at the accountability of Epstein's attorneys in their dealings with then US attorney Acoste in working out a favorable resolution for Epstein of serious charges. Alas, one must not lose sight of Trump's pardon power for Trump's idea of a fun guy.

This post addresses a serious subject that should be addressed sooner rather than later. But as noted earlier, there is no statute of limitation in the court of public opinion.

Joe said...

I'm concerned with a complete end to statute of limitations without special protections of some sort [not sure what] and strong arguments to do so (e.g., Dorf's fellow Verdict columnist Prof. Marci Hamilton) concern me to some degree in the case of child sexual crimes.

I'm wary of prosecution of crimes of that nature, often with evidence reliant on faulty memories and so forth, from let's say forty years ago or something. In the scheme of things, I probably think it a good idea to not go back much further in this case. Someone ask, e.g., about an alleged act involving Trump from the early 1990s.

Shags comments are appreciated. I'd add that criminal prosecution is not the only approach here as seen in the religious official abuse context. See also Kavanaugh -- not confirming him to the Supreme Court is not akin to prosecution. That remains a blot on our institutions.

Joseph said...

Any thoughts on what has caused popular attention to turn to statutes of limitations?

The Lilly Ledbetter Fair Pay Act comes to mind as a case that captured significant attention, but I don't think most people understood the relatively limited change the law was making.

TruePath said...

There's a good argument that murder should be treated relatively differently. In a murder charge there is usually an event of note at the time (a body is found, someone goes missing) which prompts people to give special note to the facts at that time and often the circumstantial witnesses will be interviewed at that time.

In contrast the less serious the event at the time (e.g. a robbery) or the less likely anyone else was to know about it (PARTICULARLY in sex crimes) there is less of a reason for third parties. to take note of what happened at the time. For example, in a case alleging past unreported sexual abuse it will be essentially impossible to call witnesses who can usefully describe whether the accuser's conduct at the time was indicative of some kind of abuse or tends to be inconsistent with those claims*.

Indeed, I'd suggest the passage of time is particularly corrosive for evaluating the credibility of victim accusations is particularly hard to evaluate after the passage of time because both the strong emotional cues we would use to judge someone's motives fade and the ability to call impeaching witnesses is particularly difficult years later since they likely won't be directly involved in the crime nor interviewed in the subsequent investigation.

On contrast a murder charge that isn't brought immediately is VERY unlikely to have a direct eye witness to the commission of the crime itself (except for a cooperating conspirator whose motives for choosing to testify now are very much in the present). Evidence is most likely to come in the form of statements about who was where at what times, third parties conveying information about who argued with whom who left the bar early etc.. that were either frozen in people's memory by the momentous disappearance/discovery of the body and for whom impeachment will tend to be more of a bright line thing (they do or don't have a grudge against the defendant...they are or aren't able to remember things clearly).

These arguments are only stronger now in that a murder case is likely to be particularly heavily dependent on forensic evidence while an accusation of unreported sexual abuse (or a lower priority incident like a burglary) is particularly unlikely to depend on forensics because they likely weren't collected at the time or if they were are consistent with both the prosecution and defense theories.


*: Yes, of course people can react in all sorts of ways to an assault but some ways of acting are evidence for the accusation (because they are more common) and others evidence against (because they are rare) ....Bayes theorem forces us to accept that if hearing that suddenly someone's attitude towards a previously beloved teacher/mentor suddenly froze and they went to lengths to avoid them is evidence supporting a non-consensual assault than it's absence is evidence supporting the defense. Of course if the accusation is manipulating an underage person into sex it might go the opposite way with a sudden spike in time spent with the accused being evidence for the prosecution.

Joe said...

In recent years, there have been popular movements in the area of child abuse in particular, including regarding the Catholic Church, and statute of limitation changes are particularly familiar to many there as compared to any number of such legal specialty matters.

The murder comment is interesting. I'm not saying I support all of it ("isn't brought immediately is VERY unlikely to have a direct eye witness to the commission of the crime itself" to me is likely to have many exceptions ... "immediately" is rather quick; delays can come for various reasons, including witnesses that are not readily available)