Stanford Law’s Bob Weisberg on Epstein’s Death in Custody and the Case Going Forward

Jeffrey Epstein was charged with sex trafficking and other crimes on July 15 and jailed in the Metropolitan Correctional Center in lower Manhattan, his request for bail denied. He was found dead in his cell on Saturday, Aug. 10. Here, criminal law expert Stanford Law Professor Robert Weisberg discusses the case.

What happens to the case, and evidence against Mr. Epstein, now that he can’t defend himself?

Stanford Law Professor Robert Weisberg

With regard to the criminal case, it’s over. Period. American law does not allow for the prosecution of a dead person.

We’ve heard from SLS alum Geoffrey Berman, the United States attorney for the Southern District of New York who is in charge of the case, that his office remains “committed to standing for you, and our investigation of the conduct charged in the indictment—which included a conspiracy count—remains ongoing.” What might co-conspirators be charged with? And is the Florida plea deal a problem?

Even without conspiracy law, other figures could be charged as accomplices to specific crimes by Epstein—and complicity isn’t a separate and lesser crime—it’s a way of being equally guilty of the same crime. If the government charges conspiracy, presumably meaning here that the confederates agreed to some long-term scheme of crimes, then they can be just as guilty as Epstein would have been as ringleader.

But it gets bigger than that. Theoretically, all conspirators can be charged with any crimes foreseeably committed by any other conspirator in furtherance of the goals of the conspirators.  So the maximum liability is homologous, although the effect of this broad federal law more often is exercised as a prosecutorial threat, used to induce pleas and cooperation.

All this comes with the caveat that the government can wriggle out of the mass-immunity plea deal made years back. I believe it can.

Could prosecutors go after his assets by filing a civil forfeiture action against Epstein’s properties, claiming they were used to facilitate crimes?

Absolutely. This would be a quasi-criminal proceeding (and would have happened as a supplement to a criminal of a living Epstein), where the government would only need to prove by a preponderance of the evidence that the assets were the instruments of or the ill-gotten gains from his crimes.

Can you talk about the circumstances surrounding Epstein’s death? He attempted suicide and was on a suicide watch for a short time. Is it typical for someone like Epstein to be left unsupervised for hours?

It is puzzling beyond belief that the highest profile defendant in the nation and someone already viewed as potentially prone to suicide would have been left unmonitored for a nano-second. So, no. I do not think it typical for someone like Epstein to have been left unsupervised in this way.

AG Barr announced that there will be a full investigation of Epstein’s death. What’s the procedure in a case like this? Would the guards, who reportedly fell asleep on duty, have been drug tested and examined on Sat. morning? Would the jail have been treated as a potential crime scene?

This is pretty uncharted territory but given that both Barr and Congress say they want a full investigation, yes to both speculations. Not that there is evidence of a crime here—but the crime-scene metaphor is accurate in terms of the degree of rigor in the forensic investigation.

The autopsy is reportedly partially completed, but news is out that bones were broken in Epstein’s neck.  How important is that?

I leave that to forensic specialists. But even if homicide is a fanciful theory here, the government will probably want to pre-refute conspiracy theories by exhausting very possible cause of death.

What about legal next steps in this case?

Of course current and new civil suits will be filed against the Epstein estate (independent of the forfeiture proceedings).  It will be interesting to see how the executors or trustees of the estate respond to these suits. Will they defend the estate? Or will they effectively concede liability and ask for court help in distribution the assets fairly?

Robert Weisberg is the Edwin E. Huddleson, Jr. Professor of Law and Faculty Co-Director of the Stanford Criminal Justice Center. His scholarship focuses on criminal law, criminal procedure, white collar crime, and sentencing policy.