In this column, Due Diligence, erstwhile attorney and GQ staff writer Jay Willis untangles the messy intersection of law, politics, and culture.
The apparent suicide of financier Jeffrey Epstein has thrown a wrench into efforts to bring the accused child sex trafficker to something resembling justice. Prosecutors may still bring charges against Epstein's associates, and victims can try to obtain civil judgments against his estate. But a month after it began, the criminal case against him is over.
Epstein's death forecloses the possibility of even conducting a criminal trial, since there are both constitutional and practical problems associated with prosecuting a dead person. They cannot be confronted by witnesses against them, for example, or offer testimony in their own defense. (If convicted by a jury, they also could not be imprisoned or otherwise punished by the state.) The indictment unsealed in July charged only him with crimes, which brings that particular prosecution to a sudden, unexpected end.
His death does not mean, however, that no one will be held criminally responsible for Epstein's alleged sex trafficking ring. Among the crimes with which Epstein was charged is conspiracy, which suggests that prosecutors were looking at the conduct of his associates all along. The unsealed indictment made reference to three unnamed individuals and detailed the ways in which they recruited new victims to his pyramid scheme-esque operation. Co-conspirators can still be prosecuted and convicted, even if Epstein himself cannot.
The identities of co-conspirators—or even their existence—may or may not already be public, and prosecutors could learn of the involvement of still more people as their investigation unfolds. One potential person of interest, for example, is Epstein's girlfriend Ghislaine Maxwell, who allegedly directed trafficked children to have sex with his friends. The Miami Herald's Julie K. Brown, who wrote the groundbreaking investigative series that sparked renewed interest in Epstein's case, has suggested that in addition to Maxwell, prosecutors will focus on Sarah Kellen Vickers, Adriana Ross, Lesley Groff, and Nadioa Marcinkova, former Epstein assistants who helped facilitate his abuse. Vickers, for example, would allegedly book "massages" for Epstein during his Palm Beach visits, while Groff purportedly made travel arrangements for trafficked girls. High-profile Epstein associates accused by his victims of sexual misconduct, from former Harvard Law School professor Alan Dershowitz to former New Mexico governor Bill Richardson, have not necessarily escaped legal jeopardy altogether.
Epstein's death, of course, eliminates the possibility that he could cooperate with prosecutors by sharing information about others' involvement in order to obtain lenience at sentencing. (For this reason, news of his suicide set off a flurry of unsubstantiated conspiracy theories about whether powerful people might have had him killed to ensure his silence.) From this point forward, prosecutors hoping to build a criminal case against anyone will have to rely on non-Epstein sources to do so.
The day before he died, a Florida court unsealed thousands of deposition transcripts and other documents from a 2017 civil case against Maxwell, which she and the plaintiffs settled out of court. These documents detail exactly how Epstein and others lured young girls into his orbit, and might prove helpful to investigators as they put the puzzle pieces together. His bank records might contain clues about people from whom he was accepting money in exchange for trafficking victims. The FBI also found child pornography when they searched Epstein's New York City townhouse last month. Prosecutors might be able to use that and any other evidence of criminal activity—physical evidence, computer files, whatever—to go after co-conspirators, too.
Although the law does not allow the state to prosecute dead criminal defendants, it permits plaintiffs to sue the estates of dead civil defendants. Thus, any Epstein victims who have not yet filed suit against him will likely do so in the days to come. (CNN has already reported that Jennifer Araoz, who accuses Epstein of raping her when she was 15 years old, will sue sometime this week.) Many details about Epstein's net worth remain shrouded in mystery, but he portrayed himself as a billionaire and maintained a complicated web of domestic and overseas bank accounts. In addition to the aforementioned townhouse—the largest private residence in Manhattan—Epstein owned a ranch in New Mexico, a mansion in Palm Beach, and a private island in the Caribbean. There are plenty of assets, in other words, that a court could liquidate in order to satisfy a potential judgment.
Pursuing compensation from Epstein's estate has its advantages: The standard of proof will be lower than the "beyond a reasonable doubt" bar that prosecutors would have to clear to obtain a criminal conviction. Plaintiffs can still use the discovery process to build a damning case against Epstein, uncovering the same documents and establishing the same facts which, if he were alive, a prosecutor could use to obtain a conviction. His death means his victims will not have to undergo the potential trauma associated with testifying at a criminal trial, or endure cross-examination conducted by his defense lawyers, or have to face their abuser in open court.
That said, his death also means that victims cannot depose Epstein during a civil proceeding, or ask him, under oath, the hard questions to which no one else knows the answers. And prior to this weekend, criminal prosecutions and civil lawsuits were not mutually exclusive methods of holding Epstein accountable. Civil liability aside, a criminal trial would have offered survivors the opportunity to see the government formally punish Jeffrey Epstein for his abuse. Now, the possibility of recovering money from a dead man's bank account is their only remaining recourse.
Originally Appeared on GQ