WSJ takes on Miami Herald re Epstein Reporting

Check out "Bad Reporting Took Down Alex Acosta" here. 

The intro:

Trying to inoculate journalists against hindsight bias is like trying to teach your cat algebra—it’s an uphill slog.Happily, the Washington Post last Sunday gave us a history of the decade-old Jeffrey Epstein sex-crimes prosecution that didn’t rely on the anachronistic innuendo that filled a Miami Herald series entitled “Perversion of Justice.” The furor caused by that series led last week to the resignation of Labor Secretary Alexander Acosta, who had the misfortune of being the U.S. attorney whose office prosecuted the long-ago case. 

The Post investigation, with a non-tabloidal realism the Herald couldn’t muster, found “not a crisp portrait of white hats tilting against black hats, but rather a mottled mural of prosecutors who were eager to stop Epstein from preying on girls, but also sensitive to the young women’s desire not to have their names made public.” It adds that Mr. Epstein’s high-priced defense team “took advantage of the fact that many victims felt a bond with their accused abuser.”

To put it more bluntly than even the Post wants to, prosecutors seem to have feared losing in court because their witnesses were unreliable. If so, this echoes the apparent experience of a state prosecutor in Palm Beach County in the same matter, who ended up going before a grand jury with a single witness, who wasn’t even underage. It also echoes a declaration, in the Herald’s own words, by the Manhattan district attorney in a subsequent matter that the “underage victims failed to cooperate” in the Florida prosecution.

There was also a shout-out to Jeff Sloman's op-ed:

Most cogent about the paper’s own role was an op-ed published in February in the Herald itself by Jeffrey H. Sloman, another member of Mr. Acosta’s team. He points out that though the Herald’s decade-after-the-fact revelations “made a strong case that [Epstein] should have gone to jail for much longer,” the paper “never explained or substantiated its accusation that we schemed with Epstein’s lawyers to avoid that result.”

Bingo. However disappointing, inadequate or even weak-kneed the punishment may look in retrospect, nothing in the record even slightly suggests prosecutors were anything but hostile to Mr. Epstein and eager to extract the strongest realistic sanction. The Herald itself only began metronomically referring to the outcome as a corrupt “sweetheart deal” in 2017 when Mr. Acosta became associated with the Trump administration.

Notice something else: Between 2005 and 2009, when the case was unfolding and making news in South Florida and around world, the Herald produced a single item about Mr. Epstein’s travails, according to the Factiva database. It was buried in a news roundup and portrayed the matter as a simple prostitution case. It didn’t mention underage girls or Mr. Epstein’s status as a crony of Bill Clinton.

I guess this was some kind of sweetheart treatment.

Judge Robin Rosenberg’s important NY Times piece

Judge Robin Rosenberg wrote a really nice piece in the New York Times about the First Step Act.  The intro:

In January 1999, Robert Clarence Potts III was sentenced to life in prison. He was 28, and had been convicted of drug and weapons charges. The federal judge sentencing him seemed to express some regret at the gravity of the penalty. But under the law at the time, Mr. Potts faced a mandatory sentence of life imprisonment without release because of the type of offenses and his two previous convictions for drug and other offenses.

“You are facing a very tough sentence here, and it is very regrettable that you are,” the judge, James C. Paine of the United States District Court of the Southern District of Florida, told him. The judge added that “we are governed by the law and the guidelines and we are going to have to go by those.” And the law and sentencing guidelines meant “a term of life imprisonment,” he explained.

To that, Mr. Potts responded, “Sir, there is not much I can say.” But it was what he did afterward that ultimately made the difference.

On Friday, Mr. Potts, now 49, is scheduled to be released from prison after more than 20 years — a turn of events made possible by the First Step Act, passed by Congress and signed by President Trump last year. Among other things, the law expanded early-release programs, modified sentencing laws and allowed defendants like Mr. Potts to seek a reduction in their sentence, a step toward correcting the country’s history of disproportionate sentences.

Rosenberg was Judge Paine’s law clerk! She goes on to explain her decision:

Mr. Potts had served over 20 years in a high-security federal penitentiary when the First Step Act became law last December. The First Step Act made the Fair Sentencing Act — signed by President Barack Obama in 2010 to reduce the disparity in sentencing for powder cocaine and crack cocaine offenses — applicable to past cases. The First Step Act also allows a defendant like Mr. Potts to seek a sentence reduction even when the original sentence was for life. The law provides wide discretion to the court to determine whether to reduce a sentence and by how much.

At his sentence reduction hearing, Mr. Potts had much more to say than he did back in 1999. Before me, he was remorseful, dignified and hopeful. He was proud of all that he had accomplished in over two decades in prison — proud of the courses he took in personal growth, responsible thinking, legal research and software, proud of his participation in nearly every health, nutrition and fitness class available. Perhaps he derived his greatest pride from conquering a debilitating addiction and maintaining his sobriety. As his lawyer explained to me, sobriety is not a foregone conclusion in prison, where drugs are widely available.

I wanted to know how Mr. Potts had managed his life in prison. He told me, “A lot of times I felt like giving up, but I didn’t want to let my mom down, my family.”

He continued: “I kept myself away from a lot of people in prison. I wasn’t around the average people in prison. Prison is an awful place. You have all these different types of organizations and gangs and foolishness. That is not me, ma’am. I’m not like that.

“I made some bad decisions in my life," he added, “but I am not a bad person.”

The true marker of a person’s character is what he does when he thinks no one is watching. Because Mr. Potts was sentenced to life, no one had really been looking at what he had been doing. But his unwavering dedication to improve himself over the last two decades, despite his circumstances, convinced me that his hope in his own future wasn’t misplaced.

After a long hearing, I concluded that 20 years was more than sufficient as punishment for his past — and serious — crimes, and ordered his release. To help his transition, he will spend six months in a residential re-entry center .

I believe Mr. Potts’s story is one of redemption through self-improvement. His case speaks to the importance of criminal justice reforms such as the First Step and Fair Sentencing Acts. His story illuminates the human impact of such reforms and a person’s capacity for hope and redemption.

Jackie Becerra investiture

Although she’s been presiding for quite some time now, Jackie Becerra has her formal investiture tomorrow (Friday). Congratulations!

RIP Justice John Paul Stevens

He was 99.

And one of the greats.

He served for 35 years.

Appointed by a Republican, but never ideological in his rulings. We need more like him.

Although there’s never been a Justice from Florida, he retired down here so we will count him!

RIP

"Your honor this is the Southern District of New York."

That was the SDNY AUSA during the Epstein bail hearing yesterday. I wonder how SDFLA AUSAs think of the way that New York prosecutors look down on this (and every other) office.

"Your honor this is the Southern District of New York," Rossmiller said, in what may be fairly read as a veiled dig at the Southern District of Florida.

— Adam Klasfeld (@KlasfeldReports) July 15, 2019

Will Jeff Epstein get bail today?

Here is the Government’s bail memo and the defense’s.

Some of the arguments for bail:

—complied with previous conditions of house arrest and probation

—enormous bail package including house arrest and guard

—waiver of extradition

—easily recognizable

—old offense with legal defenses

Some of the arguments against:

—enormous wealth with means to travel

—potential witness tampering

—potential new offenses re images found in safe

—nature and strength of the case

Breaking — Alex Acosta resigns

More to follow.

"Dear Florida Supreme Court: We need your help."

That's how Judge Newsom starts off this opinion, which certifies a question to the Florida Supreme Court. 

Dear Florida Supreme Court: We need your help. Among other much simpler issues, this case presents a knotty and important state-law contract question that is more appropriately answered by you than by us. Accordingly, after clearing away some underbrush, we will respectfully certify to you the following question:

Is a contractual “exculpatory clause” that purports to insulate one of the signatories from “any … damages regardless of kind or type … whether in contract, tort (including negligence), or otherwise” enforceable? Or, alternatively, does the clause confer such sweeping immunity that it renders the entire contract in which it appears illusory? Or, finally, might the clause plausibly be construed so as to bar some but not all claims and thus save the contract from invalidation?

Each possibility finds at least some support in Florida law, each comes with its own equitable pros and cons, and each has dramatically different implications for the case before us.